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Federal Constitutional Court rejects urgent legal protection
Patients with cluster headaches are still unable to require medical cannabis pain treatment from statutory health insurance. The Federal Constitutional Court in Karlsruhe rejected a corresponding urgent request in a decision published on Friday, July 20, 2018 (file number: 1 BvR 733/18). It confirms a decision by the Hessian State Social Court (LSG).
According to the German Migraine and Headache Society, cluster headaches usually occur up to eight times a day for many months, until a pain-free phase can come again. The attack-like one-sided pain can be so severe that the affected person even faints. How many people are affected is unclear. Estimates range from one in a thousand to one in a hundred.
In the case now decided, the applicant wanted to get his pain under control with medicinal cannabis. In urgent proceedings, he wanted to force his statutory health insurance company to assume the costs.
The LSG obtained an opinion from the medical service of the health insurance companies (MDK). This came to the conclusion that, according to the current state of knowledge, the use of cannabinoids is of no use for cluster headaches. It referred to two studies on the use of marijuana and migraines and a survey of cannabis and cluster headaches. After that, there are no sufficient indications of therapy success. Ultimately, due to the poor data situation, the results of controlled studies still have to be awaited.
In its summary examination, the LSG rejected the urgent application for reimbursement of costs.
The headache patient saw his right to effective legal protection violated in the LSG examination and asked the Federal Constitutional Court for help. In the case of unreasonable, otherwise unavoidable impairments, the LSG must regularly not only review the factual and legal situation, but also conclusively. This had not happened here.
In its decision of June 26, 2018, the Federal Constitutional Court rejected the urgent request. The specialist court only had to "examine the factual and legal situation in more detail the more serious the impending violation of fundamental rights and the higher the likelihood of occurrence," said the constitutional judge. The factual and legal situation had been sufficiently penetrated by the LSG, even if the court assessed the outcome of the main proceedings as open, but still predictable to a large extent.
Here the LSG was rightly based on the MDK report and the lack of effectiveness of cannabis treatment listed therein. The complainant had not sufficiently demonstrated why the LSG should have reached a different conclusion. fle