On the basis of the chronology of decision making on the treatment of the child of which we were informed by the complainant, the clarifications received from the ZZZS and Ljubljana University Medical Centre and other available documentation, we established that surgery on the child had been planned several times at Ljubljana University Medical Centre, but was never performed for various reasons (e.g. also because the surgeon had failed to obtain a work permit in time). At the time, the reorganisation of the treatment of children with a congenital heart disease was underway, and when no surgeon was available at Ljubljana University Medical Centre, the children were sent for treatment abroad. This was also the case with the complainant’s daughter; however, a few weeks after the medical council’s first opinion and before the anticipated treatment date abroad, Ljubljana University Medical Centre started cooperating with foreign surgeons, which again offered new options for her treatment at Ljubljana University Medical Centre, where she would have been treated by a classic procedure, since, as it was explained to the parents, “surgical closure of the defect through classic midline sternotomy was recommended in her case as the most reliable and least risky method”. Regarding the aforementioned, we assessed that the field of children’s cardiac surgery was not regulated appropriately at Ljubljana University Medical Centre but quite the reverse, since patients’ treatment depends on too many secondary factors. We did not get into expert justifications about whether classic or catheter surgery was more suitable for the little girl; however, we could not avoid thinking that the procedure concerned adjusted to the skills and knowledge of the surgeon currently available, rather than the patient’s needs. It is otherwise difficult to explain the radically changed opinion of the medical council on the treatment and the eligibility of the child’s treatment abroad, particularly since the complainant received information that the surgeon who was to perform the classic midline sternotomy on his daughter in Slovenia did not perform the less invasive procedure that was proposed in the medical council’s first opinion. Our findings referred particularly to the conduct (organisation) of the child’s medical treatment, not the expert reasoning on why classic or a catheter surgery would have been more suitable for her. Nevertheless, it was impossible to completely avoid this issue in certain sections. In our opinion, certain dilemmas addressed remained open, in spite of the clarifications offered by Ljubljana University Medical Centre. Since they were inseparably linked to the substantive decision, which is (may be) subject to judicial review, we have decided not to discuss the matter further. We informed the ZZZS about the deficiencies established in the conduct of procedural and administrative operations, and established that this was a case of undue delay in the decisionmaking procedure. 3.4-35/2015 The right to parental accompaniment The Ombudsman discussed various complaints relating to the rights of persons with special needs in all fields of their everyday lives and participation. One complaint referred to the possibility of parental accompaniment of hospitalised adults with special needs, particularly those with severe or profound mental disorders whose parents are still their legal guardians. We received information that parental accompaniment is not possible in such cases, or depends on the ‘good will’ of the hospital, which is why we asked Ljubljana University Medical Centre and Maribor University Medical Centre for further clarification of this matter. Such accompaniment is not a right arising from compulsory health insurance, but it was understood from the replies of both medical centres that they were aware of the importance and role of parents accompanying a hospitalised child with special needs even if the patient is above the age of 18. In such cases, which are rare, they were trying to find the best solution for co-habitation of parents, i.e. accommodation in a special room or at least in a room with the fewest patients according to space available. Parents know their children best and may more easily ‘manage’ children’s unpredictable behaviour. They know how to communicate with them, recognise their needs and feelings, and can participate in the treatment. Inequality of residents in retirement homes regarding rights arising from compulsory health insurance We received a complaint claiming that residents accommodated in institutional care (in retirement homes) were being treated unequally. Residents in homes with no concession in the field of social care were not entitled to the same services from compulsory health insurance as residents in homes with a concession for providing institutional care. The complainant assessed that the Health Care and Health Insurance Act did not comply with the Constitution, since it had no provision ensuring equality of the aforementioned categories of residents in retirement homes. The Act apparently contains a lacuna, and the complainant thus proposed that the Ombudsman file a request for a review of the constitutionality of the Health Care and Health Insurance Act on the basis of paragraph one of Article 23a of the Constitutional Court Act. This issue was also discussed during several personal interviews. The complainant also submitted the written position of the Health Insurance Institute of Slovenia (ZZZS) on why it refused to pay for nursing care or services provided in retirement homes with no concession. The Ombudsman believes that a concession in institutional care is not determined anywhere in the legislation as a pre-condition for implementing rights arising from compulsory health insurance. We thus assess that refusing to finance health services in these cases has no basis in regulations, but is a contestable interpretation of the regulations of the Health Insurance Institute of Slovenia. We believe that the aforementioned Article 23 (i.e. indent thirteen of point one) is essential for resolving this issue; however, the Ombudsman’s understanding of the Article differs substantially from that of the ZZZS. Article 23 ensures insured persons payment (in full) for the following health services: “– home-care visits, treatment and care at home and in social care institutions”. Retirement homes undoubtedly also implement a health-care activity, since paragraph one of Article 16 of the Social Security Act stipulates: “Institutional care according to this Act includes all types of help in institutions, in another family or other organised type of help used to substitute or supplement for entitled persons the functions of their home and their own family, and in particular accommodation, organised meals, care and medical care.” On the basis of this Act, retirement homes have the right and duty to organise and ensure health care for their residents. This provision applies to all institutional care providers irrespective of the provider’s status and possible concession. In paragraphs two and three of Article 8, the Health Services Act determines: “Social care institutions and special education institutions for children and adolescents with physical and mental disorders provide health care and rehabilitation to their residents within their primary health-care service. Institutions from the preceding paragraph may also organise other primary health care and specialist or consultant activities for their residents in accordance with nature of the institution’s activities and the public health network.” It is clearly understood from the above provisions that all social care institutions provide nursing care and are not limited in this respect by the presence or absence of a concession, since the public health-care network (which requires a concession) is not mentioned in connection with nursing, but to other health services. However, in doing so, social care institutions are limited only to their residents and must not provide their services to others. The Ministry of Health took this position on providing primary health care in retirement homes in 2014, of which it also informed the ZZZS. The Ombudsman supports such cases of good practice, which not only implement rights determined by law, but also adjust activities to individuals’ special needs. We cannot agree with the position that insured persons are entitled to services that are subject to compulsory health insurance in certain cases on the same legal basis and in others they are not entitled to services merely due to the fact that they are not accommodated at the ‘right’ provider and they continue to pay for all services. We believe that the right arising from indent 13 of point 1 of Article 23 of the Health Care and Health Insurance 132 ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015 ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015 133 2.12 HEALTH CARE AND HEALTH INSURANCE 2.12 HEALTH CARE AND HEALTH INSURANCE recorded accordingly. Four months later, the ZZZS received a supplemented opinion which was contrary to the first one, i.e. stating that the options for treatment in Slovenia had not been exhausted. On the basis of this opinion, the ZZZS rejected the application for treatment abroad five months after it was filed.