EXTENDED SUMMARY

Medicine is in a state of constant change and development. Fatal diseases can become completely curable with a treatment method, drug or vaccine developed over time. However, when the Social Security Institution’s Communiqué on Healthcare Practices (“SUT”) is examined, it is seen that, the communiqué has adopted the method of limiting counting regarding the treatments, drugs and devices to be paid with an approach that ignores the continuous development of medicine, falls behind this development, and puts the Institution’s budget in the foreground, not the health, and the communiqué substantially limits the authorities and liabilities of physicians arising from the medical deontology rules mentioned below regarding the treatment of their patients. In other words, physicians are left with a range of action to the extent that they are allowed in the “SUT” regarding their treatment, which is clearly incompatible with the principle of giving preference to the physician’s preference in medicine. This regulation style of the “SUT” is in contradiction with the dynamic structure of the general health insurance in terms of its subject and purpose.

Unless a change is made in the “SUT” system, the lawsuits filed by the general health insurance holders against the Social Security Institution (“SGK”) for drugs, medical devices, and similar items that they personally pay for, and the annulment lawsuits filed by the physicians, pharmacists’ professional chambers and the patients at the Council of State regarding the provisions of the SUT will never end. In this study, our aim is to examine whether the existing SUT system in general health insurance is compatible with the authority to determine the diagnosis and treatment methods of health services to be financed, and the types, quantities, and duration of use of orthoses, prostheses and other healing tools and equipment, granted to the “SGK” in article 63/2 of Law No. 5510, which is the legal basis of “SUT”.

General health insurance is a health insurance that ensures that all members of the society can benefit from health services equally, easily, and effectively, against the risk of disease that may arise regardless of the economic power and desire of the people. General health insurance is not an insurance branch that provides health services per se, it is an insurance branch that provides the financing of health services. In this model, the general health insurance does not operate a hospital, rather it performs health services through official and private outsourced methods.

After explaining in detail, the health services to be financed within the scope of general health insurance as summarized above in the first paragraph of Article 63 of Law No. 5510, in each concrete case, the criterion of “deemed necessary by the physician” has been taken as a basis in accordance with the principles of medical science and medical legislation regarding the determination of what, which drugs, devices will be required and used. The physician’s authority to determine is not unlimited, in Article 64, health services that will not be financed by the Institution have been listed as subject to the principle of limited number. A health service not specified in Article 64 can be given by the decision of the physician and its cost must be paid by the Institution within the scope of general health insurance.

Although the health services that will and will not be financed by the Institution are arranged in a structure that complements each other in this way, in the second paragraph of Article 63, the Institution has been given a determination authority that cannot be reconciled with this approach at first glance, which is the legal basis of the SUT, which is the subject of our study. Between the payment of the health services required by the physician in the first paragraph of the article and the health services that will not be paid in the Article 64, the second paragraph contains the rule “The Institution is authorized to determine the diagnosis and treatment methods of the health services to be financed, and the types, amounts and periods of use, payment procedures and principles of the health services specified in subparagraph (f)…”

Considering that the right to health is the guarantee of life, which is the most fundamental right, it is not possible to understand the purpose of giving authority to the Institution in this system from a legal point of view. The parallelism of the general health insurance benefits and the premiums to be received, which is emphasized in the justification of the article regarding the authority of determination of the Institution, is possible to the extent that it does not cause conflict with the drugs, devices, and other services that physicians deem necessary for treatment. The authority of the Institution to determine should not be interpreted in a way that harms the essence of the right to health and overtakes the legislation on the professional powers and liabilities of physicians.

Just as changes in social life require changes in legal texts after a short or long period of time, scientific developments shape legal texts in the field of health. Health services are different from other public services due to their nature. The human health problem, which is the main goal of health care, cannot be postponed or substituted. The continuous innovation and development of diagnosis and treatment methods, which should be based on science, for the benefit of people requires bringing service quality and expectations closer to the conditions of the age. In this respect, health services are the kind of services that will benefit from the profit, competition and growth dynamics of the private sector in the production and presentation of them for the benefit of the public due to their internal dynamics and characteristics.

Intentions to provide legal basis of prohibitions and restrictions in SUT as health services that will not be financed with the paragraph added to Article 64 of Law No. 5510 in 2012 is incompatible with patient rights on the one hand and medical deontology rules on the other hand, within the scope of health legislation. The right to health is in close connection with the ‘right to life, to protect the material and spiritual entity’ regulated in Article 17 of the Constitution. Therefore, the state will not be able to make regulations that abolish the “right to life” in the restrictions it will apply while performing its duties in the economic and social field pursuant to Article 65 of the Constitution. The use of the authority used with the SUT only to save money on health expenditures and to eliminate the lack of control in the payments made to health institutions and organizations should not prevent the fulfilment of health services as prescribed by medical science.

The patient has the right to demand diagnosis, treatment, and care in accordance with the requirements of modern medical knowledge and technology. Diagnosis and treatment cannot be made that is contrary to the principles of medicine and the provisions of the legislation related to medicine. In this case, the physician should determine what is necessary for treatment not based on SUT regulations, but by considering the requirements of modern medical knowledge and technology, otherwise the approach is incompatible with the right to life. According to the rules of Medical Deontology, physicians and dentists act according to their conscientious and professional convictions without any influence while performing their art and profession, and the physician and dentist are free to determine the treatment to be applied.

The prohibitive and restrictive point of view, which violates the essence of the right to health in the SUT system, should be changed, as many health services are not paid by the Institution even though they are deemed necessary by the physician in objective conditions for the patient and comply with modern medicine, deontology rules and patient rights. It should be ensured that the power of determination should be used in a way that does not conflict with the aims of the right to health, rather than financial concerns, by writing much more detailed than Article 63/2 of Law No. 5510. For this purpose, the determination authority should be given to an independent institution, not the insurance institution, SGK, that will make the payments, with the amendment in the Law in a way that eliminates doubts about the objectivity of the determinations in the eyes of the public. In addition, the limits of the Institution’s authority to determine should be clearly limited to the elements that the health service should be adequate, fit for purpose/measured in terms of purpose and economic. In this way, these three elements related to the scope of the determination authority should be clearly listed in the legislation, it should ensure that the determination will meet all three elements together at the best level, for example, determination should not be made solely out of concerns about the economic future of the system.