9C_12/2022 dated 26 October 2022

16 December 2022 – In May 2020, the respondent had applied for coverage of the costs by the appellant, a health insurance company, of a prophylactic bilateral mastectomy with immediate reconstruction due to a probable pathogenic mutation in PALB2 c.212-2 A>C. The request was rejected by the plaintiff and the rejection confirmed in an objection decision. The appeal filed by the respondent was upheld by the Social Insurance Court of the Canton of Basel-Stadt (cantonal court) on 14 June 2021, whereupon the plaintiff filed an appeal in public law matters. The Federal Supreme Court (the Court) had to argue whether the refusal to cover the costs constituted a violation of federal law.

Measures for the prophylaxis of diseases covered by mandatory health insurance are defined in a positive list in Art. 12b of the Ordinance on Health Care Services (Krankenpflege-Leistungsverordnung, KLV). A medical treatment for the prophylaxis of diseases is only covered by mandatory health insurance from the time it is included in this exhaustive list. If a judge were to add to the list, the intended homogeneity of this list from a medical point of view would no longer be guaranteed, which is why it is subject to limited judicial review, which must reserve a wide scope for the department. Judicial review of any loopholes from the point of view of legality is only possible within very narrow limits and with great restraint. It may come into question if there is a clear gap In the sense of an obvious forgetting or oversight or if the criticised restriction is based on arbitrary considerations of the legislator. The court did not consider these requirements to be met in the case of prophylactic mastectomy for carriers of PALB2. The Court found that an exceptional judicial addition to Art. 12b lit. e of the Ordinance on Health Care Services was inadmissible, as there was a significant difference in the medical evidence between PALB2 gene mutations and mutations in the BRCA1/2 gene.

For more information, see here.