1. Enforced cooperation for patients – implications for Social Rights Prof. Dr. Kurt Pärli,

2. Agenda. Enforced cooperation for patients – implications for Social Rights – presentation Kurt Pärli, 21th European Congress of EUMASS, 9 th June 2016 University of Basel, Faculty of Law2 IIntroduction IIFrom Welfare to Workfare IIIThe role of Human Rights IVEnforced cooperation for patients: Examples in the Swiss Disability Insurance VFinal remarks

3. I) Introduction -Issues and structure of the presentation -Relationship between patients and Social Security authorities -Societal challenge – need to see the bigger picture -“de facto compulsory treatment” – role of fundamental rights -Examples of the Swiss Disability Insurance University of Basel, Faculty of Law3 Enforced cooperation for patients – implications for Social Rights – presentation Kurt Pärli, 21th European Congress of EUMASS, 9 th June 2016

4. Agenda. Enforced cooperation for patients – implications for Social Rights – presentation Kurt Pärli, 21th European Congress of EUMASS, 9 th June 2016 University of Basel, Faculty of Law4 IIntroduction IIFrom Welfare to Workfare IIIThe role of Human Rights IVEnforced cooperation for patients: Examples in the Swiss Disability Insurance VFinal remarks

5. II) From Welfare to Workfare (1)  Industrialisation / Social question / birth of the Welfare State  Analysis of Social Science (Polanyi, Esping Andersen):  Effect of a market dependency: Commodification  Effect of Social insurance: De-commodification  At the end of the 20 th Century: Welfare state as problem, not as solution  Increasing number of people leaving the labour market  Moral hazard suspicion University of Basel, Faculty of Law5 Enforced cooperation for patients – implications for Social Rights – presentation Kurt Pärli, 21th European Congress of EUMASS, 9 th June 2016

6. II) From Welfare to Workfare (2)  Reforming the Welfare state  Workfare instead of Welfare  Activation  Support, constraint and sanction  A step backwards to fully market dependency? Re- commodification…  More individual responsibility for successful integration for sick and injured  Social Science: “Governementality-Theories”, health as a question of will University of Basel, Faculty of Law6 Enforced cooperation for patients – implications for Social Rights – presentation Kurt Pärli, 21th European Congress of EUMASS, 9 th June 2016

7. II) From Welfare to Workfare (3) Summary:  Industrialisation … commodification … social problems…  … partly corrected through social insurance and other welfare state measures  The classic welfare–state brought individuals more freedom from the constraints of the market = de-commodification  More competitive economy (Globalisation)…. need for a better adaption of the individuals to the new situation…. Welfare state as problem  birth of the active welfare state…. process of “de-commodification” in the meaning that individuals have to be activated for integration in the labour market  activation is supporting on the one hand and sanctioning on the other hand. University of Basel, Faculty of Law7 Enforced cooperation for patients – implications for Social Rights – presentation Kurt Pärli, 21th European Congress of EUMASS, 9 th June 2016

8. Agenda. Enforced cooperation for patients – implications for Social Rights – presentation Kurt Pärli, 21th European Congress of EUMASS, 9 th June 2016 University of Basel, Faculty of Law8 IIntroduction IIFrom Welfare to Workfare IIIThe role of Human Rights IVEnforced cooperation for patients: Examples in the Swiss Disability Insurance VFinal remarks

9. III) The Role of Human Rights (1) -Preliminary remarks: -First generation Human rights (civil and political rights) -Right to live, freedom of speech, religion, belief … -Right to vote, equality before the law.. -Effect: protection against abusive state power -Second generation Human rights (economic, social and cultural rights) -Right to work, just and favorable working conditions… -Right to adequate social security including unemployment benefits -Effect: positive obligation for the state to enforce those rights (but rather no direct effect, lack of “self-executing”- character University of Basel, Faculty of Law9 Enforced cooperation for patients – implications for Social Rights – presentation Kurt Pärli, 21th European Congress of EUMASS, 9 th June 2016

10. III) The Role of Human Rights (2) -Interaction between first and second generation rights and “enforced cooperation”? -Establishment of social insurances, fulfilling the positive obligations for quaranteeing social human rights, however… -benefits are never unconditioned -The conditions may violet “classic” Human rights guarantee’s like freedom of religion or others -No direct violation -“de facto-violation” -Case law of the Swiss Federal High Court University of Basel, Faculty of Law10 Enforced cooperation for patients – implications for Social Rights – presentation Kurt Pärli, 21th European Congress of EUMASS, 9 th June 2016

11. Agenda. Enforced cooperation for patients – implications for Social Rights – presentation Kurt Pärli, 21th European Congress of EUMASS, 9 th June 2016 University of Basel, Faculty of Law11 IIntroduction IIFrom Welfare to Workfare IIIThe role of Human Rights IVEnforced cooperation for patients: Examples in the Swiss Disability Insurance VFinal remarks

12. IV) Enforced cooperation for patients: Examples in the Swiss Disability Insurance (1) University of Basel, Faculty of Law12 Enforced cooperation for patients – implications for Social Rights – presentation Kurt Pärli, 21th European Congress of EUMASS, 9 th June 2016 -Credo “Integration before pension” since the beginning, but… -… paradigm shift: The excellent idea of integration if possible shifted to a totalitarian ideology of integration at any price -Verification of this hypothesis: -Statutory provisionsStatutory provisions -Case law of the Swiss Federal High Court -Some diseases cannot per definition be a legal basis for pensions of the disability insurance. examples: somatoform pain disorder, fibromyalgia, non-organic hypersomnia -Labelling of such diseases: “pathogenically-aetiologically unclear syndrome pain patterns without organic basics”, or, more understandable: medically unexplained physical symp­toms -Idea behind: using nothing but willpower would help to overcome work incapacity

13. The Federal Law in the General Part of the Social Security Law (ATSG): Art. 21 (4) ATSG 4 If an insured person withdraws from or refuses a reasonable treatment or integration into the workforce which would provide a significant improvement in the ability to work or promise a new possibility to be employed, or does not make a contribution to what is reasonable for them of their own accord, their benefits can be temporarily or permanently reduced or refused. They must previously be warned in writing and made aware of the legal consequences; they must be given appropriate time to consider. Treatment or integrative measures which represent a danger for life and health are not reasonable. University of Basel, Faculty of Law13 Enforced cooperation for patients – implications for Social Rights – presentation Kurt Pärli, 21th European Congress of EUMASS, 9 th June 2016

14. Federal Law on Disability Insurance (IVG) Art. 7 IVG, obligations of the insured person 1 The insured person must undertake all reasonable efforts to minimise the duration and extent of the inability to work (Art. 6 ATSG) and to prevent the occurrence of a disability (Art. 8 ATSG). 2 The insured person must actively participate in all reasonable measures which serve to maintain their existing employment or their integration into the workforce or a remit equivalent to gainful employment (area of responsibility). In particular: a. Early intervention measures (Art. 7d); b. Preparative measures for integration into employment (Art. 14a); c. Professional measures (Art. 15-18 and 18b); d. Medical treatments pursuant to Art. 25 Health Insurance Act (KVG) 3 ; 3 e. Measures for the reintegration of persons drawing a pension pursuant to Art. 8a (2). University of Basel, Faculty of Law14 Enforced cooperation for patients – implications for Social Rights – presentation Kurt Pärli, 21th European Congress of EUMASS, 9 th June 2016

15. Federal Law on Disability Insurance (IVG) Art. 7 IVG, obligations of the insured person 1 The insured person must undertake all reasonable efforts to minimise the duration and extent of the inability to work (Art. 6 ATSG) and to prevent the occurrence of a disability (Art. 8 ATSG). 2 The insured person must actively participate in all reasonable measures which serve to maintain their existing employment or their integration into the workforce or a remit equivalent to gainful employment (area of responsibility). In particular: a. Early intervention measures (Art. 7d); b. Preparative measures for integration into employment (Art. 14a); c. Professional measures (Art. 15-18 and 18b); d. Medical treatments pursuant to Art. 25 Health Insurance Act (KVG) 3 ; 3 e. Measures for the reintegration of persons drawing a pension pursuant to Art. 8a (2). University of Basel, Faculty of Law15 Enforced cooperation for patients – implications for Social Rights – presentation Kurt Pärli, 21th European Congress of EUMASS, 9 th June 2016

16. Federal Law on Disability Insurance (IVG) The Law is also specifying what “reasonable efforts” means: Art. 7a IVG, reasonable measures “Reasonable” is defined as any measure which assists the integration of the insured person; this excludes measures which are not appropriate for their state of health. And what are the consequences, when an insured person does not comply? There is a rule in the disability statute as well: Art. 7b sanctions 1 The benefits may be reduced or refused pursuant to Art. 21 (4) ATSG if the insured person has not complied with the obligations set out in Art. 7 of this law or of Art. 43(2) ATSG. University of Basel, Faculty of Law16 Enforced cooperation for patients – implications for Social Rights – presentation Kurt Pärli, 21th European Congress of EUMASS, 9 th June 2016

17. IV) Enforced cooperation for patients: Examples in the Swiss Disability Insurance (2) University of Basel, Faculty of Law17 Enforced cooperation for patients – implications for Social Rights – presentation Kurt Pärli, 21th European Congress of EUMASS, 9 th June 2016 -Medical treatment (may) have positive effects on the occupational integration … -…. Patients have to comply with “reasonable treatments” -…. what treatments are reasonable? -Case law of the Swiss Federal High CourtCase law -Usefulness of these decisions on medical point of view? -The legal question: Is the enforced cooperation in line with constitutional and human rights? -may be, may be not, but… -lack of substantial reflection about the Human right dimension -fair balance between the individual and collective interests

18. Judgments of the Swiss Federal High Court about “reasonableness of treatments” (1) Judgement 9C_33/2015 dated 27 May 2015 3. It is sufficient for a reduction or refusal of benefits pursuant to Art. 21 (4) ATSG if the medical measures under discussion would likely have provided a significant improvement of the ability to work. The level of probability required is assessed by taking into account the severity of the intrusion into the personal rights associated with the measure: for therapeutic measures associated with only a minimal intrusion, high expectations may not be placed on the likelihood of the anticipated improvement. If the intrusion is considerable (such as that for an orthopaedic spine operation), a higher probability is demanded, but not certain success. The requirements for the obligation to minimise damage are stricter if an increased claim of disability insurance comes into question, namely if the refusal of damage-limiting safety measures triggers pension benefits. If the lack of perception as to the disease is however itself a part of the suffering and an insured person declines a reasonable therapy for this reason, this is not sufficient under these circumstances to be considered negligence. University of Basel, Faculty of Law18 Enforced cooperation for patients – implications for Social Rights – presentation Kurt Pärli, 21th European Congress of EUMASS, 9 th June 2016

19. Judgments of the Swiss Federal High Court about “reasonableness of treatments” (2) Judgement 9C_33/2015, 27.5.2015: Psychotherapy (partially hospitalised) A hospitalisation lasting several weeks with psychotherapeutic contacts in the individual and group settings and a subsequent partially hospitalised therapy (of 6 to 12 weeks) as well as the taking of an antidepressant with the corresponding control of the plasma levels is reasonable. Judgement 8C_70/2014, 7.4.2014: Psychiatric treatment An intensive, closely monitored psychiatric treatment with access to a day clinic or treatment with full hospitalisation is reasonable in this case. A lack of insight into the illness was refuted. The indicated treatment would have provided the required, not high, probability of a capacity to work of 50 %. The reduction was made correctly. Judgement 9C_82/2013, 20.3.2013: Neuroleptic treatment …. the neuroleptic treatment is reasonable; cancellation of the quarter pension is not excessive. Judgement 9C_537/2011, 28.6.2012: Psychotherapy 5.... Another aspect of the obligation for self-integration must be noted in parallel to this: a consistent treatment of the depression and its accompanying symptoms is required, as may be potentially necessary maintenance therapy measures with regard to character and behavioural disorders (Art. 21 Abs. 4 ATSG). (Art. 21 Abs. 4 ATSG). University of Basel, Faculty of Law19 Enforced cooperation for patients – implications for Social Rights – presentation Kurt Pärli, 21th European Congress of EUMASS, 9 th June 2016

20. Judgments of the Swiss Federal High Court about “reasonableness of treatments” (3) University of Basel, Faculty of Law20 Enforced cooperation for patients – implications for Social Rights – presentation Kurt Pärli, 21th European Congress of EUMASS, 9 th June 2016 Judgement 8C_128/2007, 14.1.2008, Hip surgery A total hip prosthesis on both sides is reasonable. Judgement U 199/04, 14.7.2005 5.1... Judgement V. dated 8 January 2004, I 861/02 discussed a hip operation (insertion of a total hip-joint prosthesis) in a 40-year old insured person. Despite the chronic anxiety and depression with chronic somatoform disorders determined psychiatrically, the operation was considered reasonable also from the subjective point of view. I 861/02 Judgement U 199/04, 14.07.2005, Wrist arthrodesis 5.1... Judgement B. dated 1 March 2005, U 287/03 concerned a wrist arthrodesis on the right side. The operation was considered reasonable from the medical point of view although it had to be noted that, owing to the insured person’s motivation or fearful expectations, a poor outcome had to be taken into consideration. Judgement B. dated 1 March 2005, U 287/03

21. IV) Enforced cooperation for patients: Examples in the Swiss Disability Insurance (2) University of Basel, Faculty of Law21 Enforced cooperation for patients – implications for Social Rights – presentation Kurt Pärli, 21th European Congress of EUMASS, 9 th June 2016 -Medical treatment (may) have positive effects on the occupational integration … -…. Patients have to comply with “reasonable treatments” -…. what treatments are reasonable? -Case law of the Swiss Federal High CourtCase law -Usefulness of these decisions on medical point of view? -The legal question: Is the enforced cooperation in line with constitutional and human rights? -may be, may be not, but… -lack of substantial reflection about the Human right dimension -fair balance between the individual and collective interests

22. Agenda. Enforced cooperation for patients – implications for Social Rights – presentation Kurt Pärli, 21th European Congress of EUMASS, 9 th June 2016 University of Basel, Faculty of Law22 IIntroduction IIFrom Welfare to Workfare IIIThe role of Human Rights IVEnforced cooperation for patients: Examples in the Swiss Disability Insurance VFinal remarks

23. V) Final remarks -Activation policies and measures -Promise: emancipation, participation -Risk: loss of insurance benefits, jeopardising guaranteed human rights -Controversial -Argument: Constraint and sanctions prevents people to falling and staying sick due to wrong incentives… -Counter-Argument: Demotivation when support is linked with sanctions for non-cooperation -Last but not least: - Behaviour control and sanctions are rising… -… may provoke “presentism” and heavy (negative) long-term effects -Human rights should be an important point of reference for activation measures University of Basel, Faculty of Law23 Enforced cooperation for patients – implications for Social Rights – presentation Kurt Pärli, 21th European Congress of EUMASS, 9 th June 2016

24. Thank you for your attention.