Federal Administrative Court, Decision C-3925/2019 from 30 March 2021

12. November 2021 – Presently, the Federal Administrative Court was concerned with a transport regulation – inter alia governing the transportation of patients between birth houses and hospitals – issued by the Council of the canton of Zurich (Regulation). The appellants, two birth houses in Zurich, inter alia, lamented (1) a violation of their right to be heard, (2) that parts of the Regulation were misleading, unclear and/or contradictory, and (3) that parts of the Regulation were disproportionate.

The Court did not support the claimed violation of their right to be heard. On the other hand, the Court found the Regulation to be misleading, unclear or contradictory in parts. While it was possible to construe the scope of the Regulation with the help of the lower instance’s remarks as well as a flow chart, the Court held that the Regulation was part of the Zurich Hospital list 2012 Acute Somatic (Spitalliste 2012 Akutsomatik). It was therefore necessary to ensure that the Regulation was clear not only to the appellants, but also to the insured persons who would consult the Regulation in future. Hence, the Court instructed the lower instance to formulate the relevant parts in the sense of the provided graphic representation in a clear, consistent and comprehensible manner.

The order, according to which transfers must take place in a car belonging to the birth centre and the birth centre must provide the driver in the case of urgent transfers, proved to be disproportionate and thus contrary to federal law. Not only does this measure put considerable financial burdens on the birth houses, it would not achieve its desired effect of increasing the security of the mother or the child. This requirement must therefore be abolished.

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