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Art. 117b BV — Nursing Care
#Overview
Art. 117b BV requires the Confederation and the cantons to promote nursing care and ensure an adequate supply of trained nursing staff. This provision was incorporated into the Constitution in 2021 through the nursing care initiative, after the population recognised the nursing care shortage as a problem.
The rule affects everyone who needs or provides nursing care services. This includes patients in hospitals, residents of nursing homes, people with home care services at home, and all nursing professionals. Hospitals, nursing homes and home care organisations are also affected because they must train apprentices.
The Confederation and the cantons must ensure that sufficient qualified nursing professionals (persons with training at universities of applied sciences or higher vocational schools) are available. They must also ensure that qualified personnel are deployed according to their training. A nursing professional should therefore not be used for simple auxiliary activities.
Concretely, this means: A nursing home must train a certain number of apprentices or pay a substitute levy. The cantons must provide sufficient training places at schools. The Confederation supports training with financial assistance.
The goal is adequate, accessible nursing care of high quality for all. However, citizens do not receive a direct entitlement to specific nursing care services. The provision only obliges the state to take action.
Art. 117b Cst. — Nursing Care
#Doctrine
#1. Legislative History
No. 1 Art. 117b Cst. was inserted into the Federal Constitution on 28 November 2021 through the adoption of the federal popular initiative «For strong nursing care» (nursing initiative) (FedGaz 2021 2914). The initiative received 60.9% of votes in favour and was accepted by 20 cantons. It aimed to constitutionally anchor nursing care as an independent area of healthcare and to address the growing challenges in the nursing sector (FedGaz 2018 7653, 7654).
No. 2 The Federal Council had recommended rejecting the initiative without a counter-proposal, as it recognised the concerns as fundamentally justified but considered the detailed requirements at constitutional level to be too far-reaching (FedGaz 2018 7653, 7667). Parliament did not follow this recommendation and developed an indirect counter-proposal in the form of a federal act on the promotion of training in nursing care, which was however considered insufficient by the initiators.
No. 3 Implementation occurred primarily through the Federal Act of 16 December 2022 on the Promotion of Training in Nursing Care (FPTNC; SR 811.22), which entered into force on 1 July 2024. The Federal Council emphasised in its message of 25 May 2022 that the cantons would have to expand or newly introduce their existing training obligations (FedGaz 2022 1301, 1335).
#2. Systematic Classification
No. 4 Art. 117b Cst. supplements the Confederation's health competences in Section 3 of Chapter 3 of the Federal Constitution. It is closely linked to → Art. 117a Cst. (Basic medical care) and → Art. 118 Cst. (Protection of health). The provision establishes parallel competence of the Confederation and cantons, whereby the federalist allocation of powers is fundamentally preserved.
No. 5 The norm has both programmatic and competence-establishing character. While para. 1 primarily represents a state objective provision, para. 2 contains a concrete obligation to act for the Confederation and cantons. This distinguishes Art. 117b Cst. from the pure social objectives under → Art. 41 Cst., which do not establish justiciable claims.
No. 6 In the context of fundamental rights, → Art. 27 Cst. (Economic freedom) must be considered, as training obligations for private service providers may constitute an interference with entrepreneurial freedom. Such interferences must satisfy the requirements of → Art. 36 Cst.
#3. Elements of the Offence / Normative Content
No. 7 «Nursing care» encompasses, according to the understanding of the initiators and implementing legislation, professional nursing by qualified nursing specialists HF/FH as well as healthcare specialists with a federal certificate of competency. The term is broader than nursing care within the meaning of the HIA and includes preventive, rehabilitative and palliative nursing services (Judgment 9C_401/2024 consid. 4.1).
No. 8 «Recognition and promotion» (para. 1) obliges the Confederation and cantons to take active measures. This includes financial support for training, creation of favourable framework conditions and upgrading of the nursing profession. The formulation «important component» underlines the independence of nursing care alongside medical care.
No. 9 The «sufficient, accessible nursing care of high quality for all» (para. 1) specifies three dimensions: quantitative sufficiency (enough nursing staff), universal accessibility (geographically and financially) as well as quality standards. This triad forms the standard for state measures.
No. 10 The «sufficient number of qualified nursing specialists» (para. 2) refers to projected demand. According to the materials, there is an additional need for 43,000 nursing specialists by 2030 (FedGaz 2022 1301, 1306). The cantons are obliged to determine regional needs and ensure corresponding training places.
No. 11 «Competence-appropriate deployment» (para. 2) aims to avoid over- or under-qualification. Qualified nursing specialists should not be deployed for auxiliary activities, while conversely assistant staff should not undertake tasks for which a higher qualification is required.
#4. Legal Consequences
No. 12 Art. 117b Cst. establishes a legislative competence and obligation of the Confederation. This was exercised through the FPTNC, which provides financial assistance for practical training and obliges the cantons to plan for needs. The Confederation's competence is not exhaustive; the cantons retain their competences in health and education.
No. 13 For the cantons there arises an implementation obligation within the framework of their competences. This includes in particular ensuring sufficient training places at universities of applied sciences and colleges of higher education as well as regulating practical training in health institutions (Judgment 9C_401/2024 consid. 5.2).
No. 14 Private service providers can be obliged to provide training services. The Federal Supreme Court has confirmed that cantonal training obligations for hospitals, nursing homes and home care organisations are permissible, provided they are proportionally designed (Judgment 9C_401/2024 consid. 5.4). In case of non-compliance, substitute fees may be levied.
No. 15 Art. 117b Cst. does not establish subjective rights to specific nursing services. Unlike fundamental rights, the provision does not grant citizens an enforceable claim to a specific nursing quality or quantity. It does however oblige the state to act under objective law.
#5. Controversial Issues
No. 16 Scope of federal competence: In legal doctrine it is disputed how far the federal competence under Art. 117b Cst. extends. Rhinow/Schefer/Uebersax (Swiss Constitutional Law, 3rd ed. 2016, § 64 No. 2876) advocate a narrow interpretation, according to which the Confederation may only enact selective regulations. In contrast, Belser/Waldmann (BSK Cst., 2nd ed. 2024, Art. 117b No. 15) argue for a broader interpretation that grants the Confederation comprehensive regulatory competences in nursing care.
No. 17 Relationship to Art. 117a Cst.: The relationship to basic medical care is controversially discussed. While Ehrenzeller/Schindler (St. Gallen Commentary Cst., 4th ed. 2023, Art. 117b No. 8) demand a clear demarcation, other authors see nursing care as an integral component of basic care, which leads to overlapping competences.
No. 18 Training obligations for private parties: The admissibility of training obligations was disputed before Art. 117b Cst. entered into force. Müller (Swiss Administrative Law, 2022, p. 567) saw this as a disproportionate interference with economic freedom. With the new constitutional provision, this controversy has largely been resolved, as Art. 117b para. 2 Cst. creates an explicit basis.
#6. Practical Guidance
No. 19 Needs assessment: Cantons must systematically survey and forecast nursing needs. Demographic developments, epidemiological trends and regional particularities must be considered. Needs planning should be rolling and updated at least every four years.
No. 20 Design of training obligations: When setting training quotas, the size and capacity of businesses must be taken into account. Very small businesses can be exempted from the training obligation or obliged to pay substitute fees. The requirements must be transparently and comprehensibly calculated (Administrative Court SG B 2025/34 consid. 4.5).
No. 21 Financing: Training costs are to be divided between the public sector and service providers. The FPTNC provides for federal contributions, which the cantons must supplement with their own resources. In tariff design, it must be ensured that training services are appropriately remunerated.
No. 22 Quality assurance: The «high quality» required in Art. 117b para. 1 Cst. requires binding standards for training and nursing practice. Cantons should define quality indicators and regularly review them. Interprofessional collaboration should be promoted to ensure competence-appropriate deployment according to para. 2.
Art. 117b BV
#Caselaw
#Genesis and constitutional anchoring
Judgment 1C_779/2021 of 17 March 2022 The popular vote of 28 November 2021 on the nursing initiative confirmed the democratic legitimacy of the new constitutional article. The Federal Supreme Court established in proceedings concerning the conduct of the vote that the initiative was duly adopted and that Art. 117b BV thus entered into force.
«On 28 November 2021, three federal popular votes took place, namely the vote on the popular initiative 'For strong nursing' (nursing initiative), the vote on the popular initiative 'Selection of federal judges by drawing lots' (justice initiative) and the referendum vote on the amendment of 19 March 2021 to the COVID-19 Act.»
#Implementation legislation and cantonal training obligations
Judgment 9C_401/2024 of 4 June 2025 E. 4.1 The Federal Supreme Court defined the constitutional framework of Art. 117b BV for implementation legislation. The provision establishes both a competence and an obligation of the Confederation and the cantons to ensure nursing care.
«Under the title 'Nursing', Art. 117b BV contains the following principles: The Confederation and the cantons recognise and promote nursing as an important component of health care and ensure adequate nursing care that is accessible to all and of high quality (para. 1). They ensure that a sufficient number of qualified nursing professionals is available for increasing demand and that persons working in nursing are deployed in accordance with their training and skills (para. 2).»
Judgment 9C_401/2024 of 4 June 2025 E. 5.2 The cantonal competence to regulate nursing training is not curtailed by Art. 117b BV. The cantons retain their principal responsibility for vocational education and training at the tertiary level and may establish training obligations.
«For the regulation of such training and further education, the cantons are principally responsible (cf. Art. 42 and 43 as well as Art. 63a ff. BV). Neither Art. 66 BV (concerning training contributions from the Confederation to the cantons) nor Art. 117b BV (concerning nursing) curtails the relevant competence of the cantons.»
#Proportionality of cantonal training obligations
Administrative Court St. Gallen B 2025/34 of 21 August 2025 The first cantonal courts dealt with the concrete application of Art. 117b BV in the area of training obligations. The St. Gallen Administrative Court confirmed the proportionality of specific training requirements for Spitex organisations.
«The specifically ordered target value for the training obligation of the appellant constitutes a permissible, in particular proportionate, restriction of economic freedom.»
#Fundamental rights limits in implementation
Judgment 9C_401/2024 of 4 June 2025 E. 5.4.3 In implementing Art. 117b BV, the fundamental rights of service providers must be respected. The Federal Supreme Court held that the public interest in ensuring sufficient nursing care carries great weight, but is not unlimited.
«That such [organisational structure] may under certain circumstances no longer be freely chosen resp. is not in every case compatible with the legal requirements of interest here, is moreover not an interference with the institution of property; the core content of the guarantee of property also remains preserved with the provisions of TG KVV concerning training obligation and substitute levy.»
#Nursing financing before Art. 117b BV entered into force
BGE 144 V 280 E. 3 Even before the anchoring of Art. 117b BV, the Federal Supreme Court had developed the basic features of nursing financing. The new constitutional provision strengthens the existing obligations to ensure nursing care.
«Since the new nursing financing entered into force on 1 January 2011, on the one hand compulsory health insurance makes a contribution to nursing services that is graduated according to nursing needs and limited (Art. 25a para. 1 KVG). On the other hand, the insured persons (Art. 25a para. 5 sent. 1 KVG) and the public authorities must also participate in these (Art. 25a para. 5 sent. 2 KVG).»
BGE 142 V 94 E. 5.3 The case law on residual financing of nursing costs remains relevant under Art. 117b BV. The cantons have considerable scope for discretion in designing nursing financing.
«A cantonal regulation whereby the communes have to assume at most the residual financing contribution that applies to contractual service providers, if and insofar as these offer suitable nursing services, remains within the regulatory competence transferred to the cantons in Art. 25a para. 5 KVG.»
BGE 139 V 135 E. 5 The cost-effectiveness review of nursing services gains a new dimension through Art. 117b BV. The constitutional provision emphasises the quality of nursing, which must be taken into account when assessing cost-effectiveness.
«Cost-effectiveness of home nursing for a person with advanced Alzheimer's disease compared to care in a nursing home; assessment from the perspective of the new nursing financing. Disproportionality of assuming costs for nursing at home.»
#Federal legislative implementation through the FAPG
Judgment 9C_401/2024 of 4 June 2025 E. 4.2 The Federal Supreme Court confirmed the constitutional basis of the Federal Act on the Promotion of Training in the Field of Nursing (FAPG) as direct implementation of Art. 117b para. 2 BV.
«In the context of implementing Art. 117b BV, the FAPG establishes under the title 'Promotion of services by actors in the field of practical training of nursing professionals' in particular the following: The cantons determine the need for places for practical training as a nursing professional HF or nursing professional FH (nursing professional).»
Judgment 9C_401/2024 of 4 June 2025 E. 5.4.4.2 The necessity of training obligations is reinforced by Art. 117b BV. The Federal Supreme Court referred to the corresponding Federal Council message, according to which cantons without existing training obligations would have to introduce such obligations at the latest with the enactment of the FAPG.
«The Federal Council indeed assumed in the message on the promotion of training in the field of nursing of 25 May 2022 that cantons resp. communes that had not yet established training obligations for all hospitals, nursing homes and Spitex organisations would have to introduce such obligations at the latest with the enactment of the FAPG.»