25.67Sentges v Netherlands Application No 27677/02, (2004) 7 CCLR 400
The margin of appreciation was, especially in relation to the allocation of scarce healthcare resources, that it could not be said that the refusal to supply a robotic arm, in the context of the provision of other services, was incompatible with Article 8 ECHR
Facts: Mr Sentges suffered from Duchenne Muscular Dystrophy, which left him unable to stand, walk or lift his arms and with minimal manual or digital function. He had an electric wheelchair with an adapted joystick and he applied to the Dutch health insurance fund for a robotic arm that would enable him to perform many tasks unassisted (he was otherwise entirely dependent on others for every act of day-to-day living).
Judgment: the ECtHR held that the refusal to provide a robotic arm was not incompatible with Article 8 ECHR:
In the instant case the applicant complained in substance not of action but of a lack of action by the State. While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, inter alia, X and Y v The Netherlands, judgment of 26 March 1985, para 23), Stubbings and Others v The United Kingdom, judgment of 22 October 1996, Reports 1996-IV, p1505, para 62).
The court has held that Article 8 may impose such positive obligations on a State where there is a direct and immediate link between the measures sought by an applicant and the latter’s private life (see Botta v Italy, cited above, para 34). However, Article 8 does not apply to situations concerning interpersonal relations of such broad and indeterminate scope that there can be no conceivable link between the measures the State is urged to take and an individual’s private life (see Botta, cited above, para 35). The court has also held that Article 8 cannot be considered applicable each time an individual’s everyday life is disrupted, but only in the exceptional cases where the State’s failure to adopt measures interferes with that individual’s right to personal development and his or her right to establish and maintain relations with other human beings and the outside world. It is incumbent on the individual concerned to demonstrate the existence of a special link between the situation complained of and the particular needs of his or her private life (see Zehnalovà and Zehnal v The Czech Republic (dec.), Application no 38621/97, ECHR 2002-V).
Even assuming that in the present case such a special link indeed exists – as was accepted by the Central Appeals Tribunal –, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole and to the wide margin of appreciation enjoyed by States in this respect in determining the steps to be taken to ensure compliance with the Convention (see Zehnalovà and Zehnal, cited above).
This margin of appreciation is even wider when, as in the present case, the issues involve an assessment of the priorities in the context of the allocation of limited State resources (see, mutatis mutandis, Osman v the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, p. 3159, para 116, O’Reilly and Others v Ireland (dec.), Application no 54725/00, 28 February 2002, unreported). In view of their familiarity with the demands made on the health care system as well as with the funds available to meet those demands, the national authorities are in a better position to carry out this assessment than an international court. In addition, the court should also be mindful of the fact that, while it will apply the Convention to the concrete facts of this particular case in accordance with Article 34, a decision issued in an individual case will nevertheless at least to some extent establish a precedent (see Pretty, cited above, para 75), valid for all Contracting States.
In the present case the court notes that the applicant has access to the standard of health care offered to all persons insured under the Health Insurance Act and the Exceptional Medical Expenses Act (see Nitecki v Poland (dec.), Application no 65653/01, 21 March 2002, unreported). It thus appears that he has been provided with an electric wheelchair with an adapted joystick. The court by no means wishes to underestimate the difficulties encountered by the applicant and appreciates the very real improvement which a robotic arm would entail for his personal autonomy and his ability to establish and develop relationships with other human beings of his choice. Nevertheless the court is of the opinion that in the circumstances of the present case it cannot be said that the respondent State exceeded the margin of appreciation afforded to it.