In addition to endangering the lives of patients, the state could be held accountable before the European Court of Human Rights in Strasbourg because the Ministry of Health does not take sufficient measures to enable them to receive organ transplants as soon as possible, warned the deputy protector of human rights and freedoms Snezana Armenko.
The patient complained to the institution of the Protector about the inability to exercise the right to a kidney transplant with an unrelated donor, at the expense of the Health Insurance Fund (FZO). The complaint stated, among other things, that she and her donor had done all the necessary tests and findings, which showed that their parameters mostly matched and that they could perform the transplant.
In the letter from the Clinical Center (KCCG), it was stated that they were examined at the Clinic for Nephrology and that they are living unrelated donors with incompatible blood groups. It is further stated that no clinic in Turkey does transplants with different blood groups, and that the Ministry received a negative response from the Embassy in Ankara for the possibility of a pair exchange of organs and that it is not possible to accept it from the aspect of "legal regulations and comprehensive assessment".
The Ministry and the National Coordinating Body for Organ Transplantation did not submit a statement to the protector until the date of drafting this opinion, even after the emergency sent.
The deputy protector expressed the opinion that by not establishing a sustainable and high-quality national transplant program, which would enable and create conditions for the complainant to receive a kidney in a timely manner and perform a transplant, the Ministry violated the obligation to provide her with appropriate health care, guaranteed by the Constitution of Montenegro.
"It is a well-known fact that transplant medicine in Montenegro is quite underdeveloped, as evidenced by statistical data that indicate a very small number of transplants carried out, both in the country and abroad, by referring patients for treatment through the Fund, as well as a small number of potential donors" , states Armenko in an opinion that "Vijesti" had access to.
She adds that the modest results in this area are partially the result of an inadequately created state policy, which does not undertake sufficient efforts to accelerate the development of transplant medicine through cooperation with other countries and international organizations.
He also notes that in 2018, Montenegro became a member of the European Organization for Organ Exchange - Eurotransplant, which gave patients the opportunity to have organs for transplantation more available, and the waiting time for transplantation shorter.
"However, since cooperation in this area is carried out on the principles of solidarity and reciprocity, i.e. the balance of given and received organs between the signatory countries, it is impossible if there is not a sufficient number of available organs for giving, which is the case in our country," says Armenko.
The Protector states, according to the data available to him, that Montenegro currently has a contract on cooperation with only one institution from Turkey, which is a worrying fact.
Although neither national nor international regulations exclude the possibility of taking and transplanting organs from living unrelated donors, this type of transplantation has never been performed in Montenegro, nor have patients been referred to other countries by the competent authorities for this type of transplantation, which justice by ethical reasons.
"Afraid of the so-called 'black markets', where organ transplants are arranged through intermediaries on the black market for the purpose of obtaining financial benefits, and other unethical practices that exist in some countries in the field of unrelated organ transplantation cannot be an excuse for the state not to provide its citizens with full health care protection and enable the implementation of organ transplants from living unrelated donors, either in the country, or by referral for treatment abroad, in situations where a suitable organ from a deceased donor cannot be obtained, nor is it possible to perform another form of medical intervention", says Armenko.
The institution of the Protector also points out that the life and health of patients must not be held hostage by the financial shortcomings of the health system in any case.
The existing system of organ transplantation does not provide the complainant with probable and realistic opportunities to realize her constitutionally guaranteed right, but she is forced to undergo dialysis treatment for years, which makes her daily functioning much more difficult.
"Comprehensive reimbursement of the actual documented costs of an organ transplant is not considered payment for the organ, but the legitimate price of the recipient's treatment. Therefore, reimbursement of such costs should be borne by the party responsible for treating the recipient," the opinion added.
The Protector points out that compliance with the positive regulations of Montenegro is not only an obligation of its citizens, but above all of all state bodies, which must show by example that their work is unconditionally based on respect for the Constitution and the law. Therefore, state administration bodies do not have the discretionary right to evaluate which of their legal obligations they will fulfill and which they will not, but it is a basic condition for the existence of a rule of law.
Armenko made a series of recommendations to the department Dragoslav Šćekić, which include renewing cooperation with Eurotransplant and concluding agreements on the establishment of mutual cooperation with other international organizations and institutions with the aim of ensuring greater availability of organs for transplantation and increasing the number of transplants performed for citizens of Montenegro.
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