The Association for Civil Rights in Israel reacted with dismay on Sunday at the High Court of Justice’s Thursday ruling which not only rejected its claim of discrimination against the poor at a new Ashdod Medical Center, but also imposed an unprecedented NIS 45,000 fine on ACRI.
ACRI had claimed discrimination against the poor due to the inclusion of a program at the medical center where 25 percent of the care provided could be privatized, meaning persons with the means to do so could pay extra to receive special care from particular doctors.
In its petition to the High Court, ACRI argued that equal medical care for all of the state’s citizens was a fundamental right, and that providing different levels of care at a state subsidized medical center violated those basic rights. The state paid over NIS 400 million – well over half the cost of establishing the medical center.
ACRI added that private care at the center would also create perverse incentives for doctors to give less time, energy and hospital resources to poorer patients so that they could invest more time in attending to “private care” patients, for whom they could get paid more.
The court, in an opinion authored by Supreme Court President Asher D. Grunis on behalf of a panel of three justices, rejected ACRI’s petition and imposed a NIS 45,000 fine, characterizing the petition as having been filed four-and-a-half years late.
In other words, the court viewed what it called the petition’s lateness as such a decisive factor that it did not need to analyze or weigh the substantive discrimination arguments made by ACRI in depth, though the court did briefly comment that it found the arguments unconvincing.
ACRI spokeswoman Nirit Moskovich said that the High Court ruling was highly problematic on two significant counts.
The first was that the court, according to Moskovich , ignored a fundamental human right to equal health care, a corollary to the fundamental right of equality, on procedural grounds without making a real effort to see if there was a way to better protect the rights which ACRI said were violated.
Secondly, Moskovich said that the heavy fine imposed in the ruling would make it hard for NGOs like ACRI to do their job of defending the rights of those too poor or vulnerable to defend themselves.
More significantly, she said it would likely lead to situations where NGOs will sometimes refrain from getting involved in helping vulnerable persons, not because they think that there is no injustice, but out of fear of fines if the court happens to disagree.
On the procedural issue itself, Moskovich and ACRI attorney Gilad Barnea disputed Justice Grunis’s characterization of the petition as late.
Justice Grunis ruled that the petition should have been filed before the government and investors had poured funds into building the institution, or at various other points during the bidding or contract signing process, all of which were public.
He noted that it was also clear that ACRI had full knowledge of the private aspects of the medical center nearly a year and a half ago, when ACRI sent a letter of protest to various government offices.
Despite sending that letter in April 2011, ACRI did not file a petition with the High Court until March 2012.
Waiting such a long time to file its petition caused significant and unnecessary prejudice to the parties already invested in the medical center, said Grunis.
Barnea responded that the argument of delay was a poor one. He said both the state and the Health Ministry had tried to stop the entire project even after the bidding process, and that the ministry could still withhold its approval.
Barnea also noted that only days before the hearing on the petition it was revealed that a private company has rights to the land on which the medical center was built, creating potential complications for its future.
Elaborating on the issue of fines, Moskovich noted that organizations like ACRI are not private organizations for profit for whom it is easy to raise funds. Rather, he said, much of ACRI’s work is done by volunteer Barnea and two other volunteer attorneys, and those funds which are available for essential expenditures are limited.
Moskovich confirmed that it had been decades since ACRI had been fined by a court. She added that, in ACRI's estimation, Grunis' decision was a big disappointment and appeared to ignore all of the public discussion provoked by the social protest movement over social justice rights like economic and health inequalities.
In contrast, Grunis noted that the private aspects of the medical center are carefully and clearly limited by law and that there were appropriate monitoring mechanisms in place to prevent inequalities.
He also pointed out that it made sense for a percentage of the medical center to be private where a significant – though minority – portion of the funding for the medical center was also private.
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