The law on epidemics is insufficient to allow a legally consistent solution to a pandemic situation, according to a study. The link with social insurance legislation is “anything but clear” and leads to “legal vagueness”.
The new law on epidemics which came into force in 2016 makes it possible to adopt restrictive measures for people, in principle under the authority of cantonal doctors, such as quarantine, isolation, screening or treatment, without regulating for as much the question of their care, said the University of Geneva (UNIGE) in a press release.
The Confederation has delegated it to the cantons, which only intervene if no other source of funding is available. “The differences between the cantonal solutions have revealed the plurality of possible interpretations, as have certain perverse effects”, notes Anne-Sylvie Dupont, professor in the Department of Public Law at UNIGE and at the Faculty of Law of the University of Neuchâtel , cited in the press release.
Three social insurances
In the case of Covid-19, three social insurances are concerned: health insurance, accident insurance and military insurance. The first does not cover all costs, leaving the insured person to pay his deductible, a 10% share of the costs and 15 francs per day for hospitalizations.
Accident insurance can intervene if the Covid-19 is recognized as an occupational disease. Advantage, it covers all the costs and also compensates for the loss of income.
SUVA poses as a condition that “the collaborators exercising the professional activity in question are exposed to a much higher risk of contracting the coronavirus than the rest of the population” and therefore seems to reserve this definition to nursing staff.
For Anne-Sylvie Dupont, the recognition should be broader, and “encompass the entire staff of care establishments as well as workers exposed by their profession to numerous contacts with people of whom they do not know the state of health, for example at the Post Office or in sales activities, in particular in pharmacies “.
The screening puzzle
Since June 25, the screening test is free, its cost is borne by the Confederation. But previously, since March 4, it was on the list of analyzes established by the Federal Council and therefore had to be reimbursed by health insurance.
But should the insured person participate in the costs? It all depends, according to the Federal Office of Public Health (FOPH): yes through the deductible or the copayment if the test had been prescribed by the attending physician, no if it had been prescribed by the cantonal doctor .
This position has led to “unequal treatment between people who have to resort to testing”, deplores Anne-Sylvie Dupont who denounces the jeopardizing of public health objectives.
“The fact of having to pay the price may have discouraged the insured person from undergoing the screening test. The risk that an individual carrying the virus has thus escaped the vigilance of the health system has been increased,” notes the researcher.
Public and private
When the cantons had to rapidly increase their hospital capacities in February and March, they resorted to two distinct solutions: some, such as Geneva, modified their hospital lists so that private establishments could receive patients from Covid- 19.
Others, like Vaud and Neuchâtel, on the contrary concentrated these same patients in public establishments and relieved on private establishments the people treated for other reasons. In both cases, the solutions adopted contravene the rules of the law on health insurance, without a legal basis authorizing it.
Still other cantons have chosen to finance “Covid-19” hospital stays through services of general interest. In this case, the insured person has nothing to pay out of his pocket. The freedom left to the cantons thus leads to a new inequality of treatment.
“Insufficient” law
“Obviously, the law on epidemics is insufficient to allow a legally consistent solution to a pandemic situation,” concludes Anne-Sylvie Dupont.
According to her, “the tests must be paid for by the public authorities exclusively and, for reasons of efficiency, the possibilities of coordinating the map of available care structures and the funding of these care should be concentrated in single hands” . These works are published in the online journal Jusletter.
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