Guarantee on disability aids, the Antitrust affirms the right to immediate assistance
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On 27.7.20 the Antitrust (Antitrust Authority for Competition and the Market, AGCM) affirmed the right to receive immediate assistance in the event of breakdowns of devices and aids for disability. Even when they have been handed over to disabled and sick people on the orders of the ASL. And it sentenced the colossus Sapio Life SpA to a fine of 240 thousand euros.
Assistance on devices and aids under warranty, the cases reported by Égalité
Égalité had denounced to the Guarantor Authority two cases of lack of assistance by Sapio Life SpA on devices and aids for disability still under warranty. Specifically, it involved:
- an expensive front wheel with electric motor (cd trike, manufactured by Batec), to be connected to a manual wheelchair,
- an anti-decubitus cushion, to be placed on the seat of the wheelchair. Essential to prevent the formation of pressure sores.
The Guarantor Authority immediately took into consideration the report by Égalité. Starting an investigation, subsequently extended to collect any documents useful for analyzing the affair.
During the investigation Another case of serious disservice of the Lombard health service emerged. She had provided a massive man (> 90 kg) of Algerian nationality with a baby-sized pram. Refusing to replace it with a chair of the appropriate size. A real torture.
Consumer Code and disability
The AGCM, following an extensive investigation, it ruled on the application of the Consumer Code (Legislative Decree 206/05) to aids and devices provided by private health companies, even if the order comes from the Regional Health Service ( SSR).
The supplier of the aids, clarifies the Antitrust, '' establishes an economic relationship with the user that can be traced back to the Consumer Code'. Even if 'imaintains a contractual relationship with the SSR aimed at creating a public service for the benefit of the disabled'. That is to say that the consumer 'is the subject in whose interest the contract between the Public Administration and the selected supplier is stipulated'. (1)
The person with disabilities temporary or permanent, underlines the Guarantor Authority, 'is in a particularly vulnerable condition and this imposes a high level of responsibility and professional diligence on the supplier'. (2)
They were considered, in particular, their rights to:
- be accurately informed, during the delivery phase, on the procedures to be activated in the event of breakdowns and malfunctions. Or in any case the unsuitability of the tools with respect to the needs that determined their order,
- receive timely assistance in any case of inadequacy or defect of the assigned aid or device.
The patient's right to choose the device and aid
'Health legislation expressly provides for the patient to participate in the identification of the most suitable device and / or model of aid, qualifying this identification as a 'choice' (Ministerial Decree 332/99, article 1.5) or as a 'request' (DPCM 12.1.27, 17.5) of the patient.
The choices / requests of the patient are placed in the foreground, to the point that it is foreseen the possibility that the specialist doctor prescribes aids or devices not included in the Nomenclator, but attributable to devices included, in order to meet specific, appreciable needs deriving from the lifestyle or the environmental context, relational or social in which the patient himself lives. ' (3)
Where reference the chosen device exceeds the expense amount established in the Nomenclator, however, the patient is asked to pay the difference. Without prejudice to the possibility for the ASL to authorize the purchase assuming the entire cost, in case of very serious pathologies.
A commercial choice it is then handed over to the disabled / patient / consumer. Who can decide whether to buy a device independently or whether to contact the Health Service, for saving reasons. And in this second case, in various Italian regions you can also choose which supplier to contact from among those selected. (4)
The Antitrust affirms the rights of disabled and sick people
'Disability aids and anti-decubitus devices are essential for the quality of life of the disabled and, therefore, the consumer must be enabled to know how to behave in the event of breakdown / breakage in order to reduce intervention and repair times to a minimum '. (5)
'Professional diligence waiting in the assistance to disabled patients (...) requires an organization capable of ensuring rapid repair (...) as well as, if such repair is not possible in a short time, the availability of replacement means and devices, to be used as long as the aid original has not been repaired or inspected by the manufacturer '. (6)
Égalité, victory!
Healthy or sick, able-bodied or disabled, from birth to last breath we are all consumers. # Égalité! And the most vulnerable deserve special attention, which must translate into timely assistance. In particular when it comes to goods and services necessary for their daily life.
Sapio Life failed to fulfill its responsibilities and was sentenced to a fine of 240 thousand euros for misleading and unfair commercial practices, carried out for over 4 years. To the point of causing, in the cases that gave rise to the story, serious inconvenience and injury to a consumer who is 100% disabled. Which, in order to obtain the replacement of the motor for the wheelchair, it was also necessary to resort to civil justice. And suffer the shame of a reply from Sapio with a request for condemnation of the disabled person for reckless litigation (!).
We want to thank you the Competition and Market Authority for having shed light on the rights of people with disabilities and thus also of the elderly and the sick. As well as our founding members Francesca Agostini, lawyer, and Giulia Torre, for having professionally supported the initiative promoted by the writer for the rights of all.
Dario Dongo
Note
(1) Antitrust, resolution 27.7.20 following the outcome of the procedure PS 11481, paragraph 78. The same is true for the Lazio Regional Administrative Court, judgment 7122/19. In line with the ruling 20.7.17 of the European Court of Justice, on the application of the unfair commercial practices directive (dir. 2005/29 / EC), in case C-357/16
(2) See paragraphs 90-91 above
(3) Idem cs, par. 21
(4) Ibidem, paragraphs 83-87
(5) See above, par. 94
(6) Para. 103
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
