Constitutional Court Annuls Removal of a Doctor from the List of Doctors Authorized to Provide Opioid Maintenance Treatment Due to Violation of the Prohibition of Arbitrariness

The constitutional problem: regulation of opioid maintenance treatment, strict (and unclear) documentation requirements for doctors

The new calendar year 2024 begins for the law firm with a successful and delightful decision by the Constitutional Court: a doctor who was authorized to provide opioid maintenance treatment and registered on the list of doctors authorized to do so was removed from the list of doctors authorized to provide opioid maintenance treatment by the responsible health authority (Municipal Department 40). The health authority had concerns about the documentation and administration practice. As this is a sensitive and, in the public interest, highly regulated area, doctors who are authorized to carry out opioid maintenance treatment are subject to comprehensive documentation obligations, which, however, are not conclusively and precisely regulated in the applicable laws (Narcotic Substances Law, Narcotic Drugs Ordinance, etc.). In several places, only “comprehensible documentation” is mentioned. The law (Narcotic Substances Law) and the Narcotic Drugs Ordinance alone do not clearly state when documentation is sufficiently comprehensible.

The constitutional solution: comprehensive duty of investigation and justification on the part of the health authority, consideration of the circumstances of the individual case

In the present case, the Constitutional Court took up our argument in particular that measures were taken in connection with the COVID-19 pandemic to provide sufficient treatment and opioid maintenance treatment for people requiring treatment. The Constitutional Court agreed with this argument and came to the conclusion that the health authority (Municipal Department 40) and the Administrative Court had not sufficiently taken this aspect into account in their decision. The decision of the Administrative Court therefore violated the prohibition of arbitrariness derived from the principle of equality. The decision dated 30 November 2023, E 1435/2023-17, was delivered to us in the middle of last week.

Our expertise in constitutional law for you

With this decision, our law firm is sharpening its profile in the area of public law. The applicable provisions in the Narcotic Substances Law and in the Narcotics Ordinance are regulations governing the exercise of gainful employment for the treating physicians. We thus remain true to our principle of successfully handling special administrative law cases in peripheral areas of public law with the utmost care and diligence. We are happy to familiarize ourselves with special matters (such as here: Narcotic Substances Law and Narcotics Ordinance) in order to achieve economically valuable and also constitutionally important victories for our clients!

With this in mind, we wish you a happy and successful new year 2024!

Please contact us at any time if you would like to have public law issues clarified before administrative authorities, administrative courts and ultimately the Administrative and/or Constitutional Court!