Statement of the Commissioner for Fundamental Rights on Government Decree on Order of Planned Medical Treatments, Rehabilitation Care and Planned Invasive Procedures in State of Danger
According to the position of Dr. Ákos Kozma, Commissioner for Fundamental Rights, the Government has reacted in a quick and meaningful way to the findings of his report No. AJB-3479/2021 on the necessity of PCR and rapid antigen tests and the prescription of their self-financing in the case of elective medical interventions. The government decree on the order of planned dental treatments, rehabilitation care and planned invasive procedures in a state of danger is a clear manifestation of the fact that the Government pays particular attention to reviewing the fundamental rights-related aspect of legislative issues during the state of danger as well, and that it is open to conducting a meaningful discussion on the proposals put forward by the Office of the Commissioner for Fundamental Rights.
The Commissioner for Fundamental Rights sees it as a major step forward that the government decree remedies the anomaly identified in his report: namely, that the requirement to perform PCR and rapid antigen tests as a prerequisite for rehabilitation care and elective interventions was not previously laid down by law, but indirectly by the individual instruction of the Minister of Human Capacities and a circular issued by the National Centre for Public Health. The relevant government decree for state of danger regulates these issues in detail and, with its entry into force (and the withdrawal of the instructions), the level of regulation will unquestionably be in line with the requirement of constitutionality.
The Ombudsman also welcomes the fact that the government decree has found a satisfactory solution to the problem identified in his report: namely, that it was not clear whether and at whose cost accompanying adults would need a negative PCR and antigen test to stay with a minor under the age of 18. Pursuant to Section 3(2) of the government decree, tests for such accompanying adults must be carried out free of charge by the healthcare institutions.
Dr. Ákos Kozma also agrees that, pursuant to Section 3(1) of the government decree, the tests must also be carried out free of charge by the healthcare institutions for minor patients and for patients who could not be vaccinated on the basis of a specialist’s opinion. Moreover, the Ombudsman considers it justified and supports the legal solution that if a patient is suspected of being infected with Covid, the healthcare institution shall be obliged to carry out the test free of charge.
The Commissioner for Fundamental Rights considers it an important and forward-looking step that in the case of such persons requesting a planned invasive procedure who are not protected against the coronavirus, on the condition that the risk of the invasive procedure is negligible from a professional point of view, the planned invasive procedure can be carried out without the tests prescribed in the government decree, on the basis of the decision of the specialist carrying out the planned invasive procedure. In this way, the legislator leaves it to the discretion of the specialist possessing the necessary expertise to decide whether the (self-financed) test can be waived for the given patient.