Right to Healthcare of Migrant Caregivers

 "… the Israeli society is assisted by caregivers – who are not citizens of Israel – for the treatment of its patients and its elderly. These are people who stay in the country for many years, legally and under the state’s request and blessing. Now, when these caregivers need to be taken care of, they must be treated generously and be allowed to heal and regain their strength, if only to some extent. They are worthy, according to the spirit of our heritage (see Proverbs XVII, 13), so we reward them with good for good and not, heaven forbid, something else.” (Judge D. Barak-Erez, par. 7)

 

At the end of last July, the Knesset labor, welfare, and health committee has rejected the Ministry of Health's (hereinafter, MoH) proposed revision for the Migrant workers' directive of 2001. The MoH's proposal wanted to add to the existing Migrant workers' health insurance regulations yet another section. This section would oblige employers a one-time compensation of 80,000 NIS to those among migrant caregivers who have been working in Israel for at least ten years, and who, due to their illness, have lost the ability to perform their work, and therefore must, according to the current directive, leave the country back to their homeland. This proposal has been rejected by the committee's chair, Mr. Eli Alaluf (Mk, Kulanu) as well as by other members of the Knesset and representatives of disabled people associations, with the main objection being that the cost of this one-time compensation will fall on the patients – disabled, handicapped, and elderly people – who struggle as it is to provide for themselves with the meager allowances they receive. As Karin Elharar, (MK, yesh atid) pointed, "we will not let you fight for the rights of one underprivileged group, at the expense of another".

 

But the small-scale drama that ensued in the committee discussion is but the tip of the iceberg of yet another story, and in itself it does not reflect the main problem that underlies the MoH's proposal. In fact, only if we trace the chain of events that preceded this proposal, will we be able to evaluate how limited and negligent this initiative really is.

 

Kav LaOved's appeal

 

Our story begins at 2006, when the worker's hotline, Kav LaOved submitted a petition to the Israeli supreme court on behalf of migrant caregivers, and requested that the court instruct the Minister of welfare and the Minister of health to apply the National welfare law and the National health insurance law, respectively, on those among migrant workers who remain in Israel for long durations of time and who develop strong affinity to Israel as they immerse themselves in Israeli life.

 

The rationale behind this appeal addressed the existing gaps between the State's regulations regarding the welfare and health of migrant workers on the one hand, and the moral obligations that the state holds towards those who reside in Israel for so long, and who serve its population with loyalty and devotion. The petitioners pointed the numerous flaws in the existing regulations, which oblige employers to insure migrant workers through private insurance companies, who are for-profit institutions, guided by purely financial considerations, rather than the workers' wellbeing. They argued that these regulations compromise the migrant workers' rights to dignity and health. Thus for instance, while these regulations assume that the migrant workers' stay does not exceed 5 years, and so offer rather limited insurance policies, in practice many caregivers are entitled to extend their work permits for much longer durations, and remain here legally for 10, 15, and even 20 or more years. As time goes by, the need may arise for such treatments as rehabilitation services and hospitalizations, which are not part of the private insurance policy. Moreover, the mere fact that these insurance policies are owned by the employers and not by the workers themselves preserves the latter's already weak position and their dependence on their employers, for the latter may prefer their own financial benefits over the rights of the former, and so may purchase for their workers a cheaper insurance plan, which might also damage the continuity of coverage.

 

Even more so, as Kav LaOved demonstrated, the existing directive includes sections that allow insurance companies to completely deny coverage, for instance in cases where the worker has gotten ill and where a doctor determined she has lost the ability to work for more than 90 days. This creates the absurd situation, where the health insurance covers the migrant worker so long as she is healthy, and stops once she needs it more than ever. In such situations, not only does the insurance company deny coverage, but in addition, the migrant's work permit expires, and she is forced to leave Israel back to her country of origin.

Clearly, when it comes to caregivers who develop strong ties to Israel and who have been residing here for many years, not only does the risk of arriving at such situations increase as they get older, but in addition, the ramifications of seizing from work and being deported become more tragic as time goes by. Thus, Kav LaOved's petition requested substantial modifications to the existing regulations, in order to rectify the unjust treatment of caregivers, which betrays blindness to the fact that, though they come here to work, still, they come here as persons, as human beings whose basic rights ought to be respected.

 

The Supreme Court ruling

Eight years have passed, and after many postponements, towards the end of June 2014 the high court has made its decision with three residing judges: Judge Arbel, Judge Fogleman, and Judge Barak-Erez, in what has been judge Arbel's last ruling in her capacity as the president of the Supreme Court.

In her ruling, judge Arbel addressed the issue of the caregivers' affinity to Israel and determined that

            "…the extended stay of these workers ties them to Israel, and at the same time severs their ties to their countries of origin. One cannot ignore this affinity to Israel, even if, officially speaking, these workers are not residents (Judge Arbel, para. 53)

 

Accordingly, such affinity only emphasizes the problems with the existing regulations, especially with regards to private health insurance. The Judges elaborated on these flaws and explained how these compromise the dignity and the right to health of migrant caregivers. They also tended to agree, and wholeheartedly so, with Kav LaOved's specific issue with the section regarding loss of the ability to work. As Judge Arbel explained:

 

           "…This section actually motivates insurance companies to over determine loss of the ability to work, for clearly, the costs of returning a worker back to her country of origin are much lower than the costs of her medical treatments. This means that in the time when the worker needs the insurance most, she receives no coverage aside for emergency treatments."

 

Judge Arbel went on to elaborate on the wrongdoing that is involved in this section, adding that

 

"…the life of that caregivers is at once stopped, and she is forced to struggle with her illness or injury, as well as with the forced return to a country she has not been to for a long while, and this after years of paying for private health insurance. This result is tough and bothersome."

 

Lastly, judge Arbel made explicit the unjust assumption that inspires this section:

 

          "…as I already stated, the migrant worker is not a tool, that once broken or when it stops fulfilling its destined function, can be returned back or thrown away. Such instrumental treatment of migrant caregivers contradicts Ethical and Judicial conceptions as well as the values of a Jewish Democratic state that respects human rights. Such treatment offends and humiliates a person's dignity (Judge Arbel para. 66)

 

In the light of these, the high court accepted Kav LaOved's petition regarding migrant caregivers' right to healthcare services and determined that "the regulations of health services for migrant workers who have strong affinity to Israel must be brought closer to those that apply to Israeli residents (para. 89)". According to the court ruling, such substantial changes ought to be brought about by applying the national health insurance law on this group of migrant caregivers. Still, the court added that it will not block alternative arrangements that would attain similar results, for instance the modification of the migrant workers' directive. The court gave the state one year to come up with a solution that would reflect its decision.

           

The ministry of health's response

Months went by, and time was running out. A year has passed since the court ruling, and one could no longer ignore the MoH's silence. Kav LaOved sent a letter to the MoH, announcing it will request to hold it in contempt of court, and only after that, has the MoH issued the very brief proposal that we mentioned in the opening lines.

It is against the backdrop of Kav LaOved's petition, and with the high court ruling in mind, that the MoH's proposal ought to be assessed. Not only has the MoH chosen to ignore the recommendation to apply the national health insurance on migrant caregivers, but moreover, where a radical revision in the migrant workers' directive was required, it proposed but a single modification, one which leaves the main tenets of the directive intact, and which takes no issue whatsoever with the numerous flaws that pertain to the private insurance, and which were so elaborately discussed in the petition as well as by the judges.

 

Moreover, the way the MoH has chosen to address the problems surrounding the issue of loss of the ability to work, is in itself highly problematic: despite the fact that compensating those who were forced to stop working (or better yet, establishing a framework for insuring loss of the ability to work) is in itself worthwhile, the amount that appears in the MoH proposal seems arbitrary. Even more so, the proposed modification absolutely disregards the heart of the problem with which judge Arbel so clearly took issue: the complete renouncement of those who have invested the best of their years nursing the sick and the elderly, and who subsequently find themselves deported, when they can no longer fulfil their functions.

We can now better understand why we said at the beginning that the MoH's proposed revision is not flawed merely because it "fights for the rights of one underprivileged group at the expense of another": for in addition to that, it reflects the state's dismissal of the court ruling, and furthermore, it reflects a dismissal of the moral values that inform it. The aim of the ruling was to make health services equally accessible to those caregivers who have become de-facto Israeli residents, so as to change the current unjust situation.  Unfortunately, as the MoH's proposal attests, the state of Israel still refuses to acknowledge the fact that, behind every caregiver who comes to Israel in order to make an honorable living, there is a human being who deserves to live honorably.