Bund und Kantone sorgen im Rahmen ihrer Zuständigkeiten für die Berücksichtigung der Komplementärmedizin.
Art. 118a BV
#Overview
Art. 118a BV obligates the Confederation and the cantons to take complementary medicine into account. This provision was adopted in 2009 with 67% of votes in favour. It is considered an important step for alternative healing methods in Switzerland.
What is complementary medicine? Complementary medicine encompasses forms of treatment that do not belong to conventional medicine. These include, for example, homeopathy (treatment with highly diluted substances), acupuncture (needles at specific body points), phytotherapy (herbal medicine) or anthroposophic medicine (holistic healing).
Who is affected? The provision affects all Swiss citizens who wish to use complementary medical treatments. Doctors, therapists and health insurers must also take these forms of treatment into account. Authorities are obligated to include complementary medicine when making decisions about training, permits or cost coverage.
What are the legal consequences? Art. 118a BV does not create a right to complementary medical treatment. It is a so-called programme provision. This means: the Confederation and the cantons must examine complementary healing methods favourably in their laws and decisions. They may not simply reject them without having good reasons.
Practical effects: Health insurance today covers certain complementary medical treatments. Doctors can pursue further training in homeopathy, acupuncture or other methods. New professions such as complementary therapist are emerging with state-recognised examinations.
Concrete example: A woman suffers from chronic headaches. Her doctor prescribes homeopathic globules (small sugar pellets with active substances). Thanks to Art. 118a BV, the health insurance fund must pay for this treatment under certain conditions. Without this constitutional provision, this would not have been possible.
The provision ensures that alternative healing methods have their place alongside conventional medicine. However, they must still be safe and carried out by well-trained specialists.
Art. 118a FC — Complementary Medicine
#Doctrine
#1. Legislative History
N. 1 Art. 118a FC was inserted into the Federal Constitution by the popular initiative «Yes to Complementary Medicine». The initiative was approved on 17 May 2009 with 67% of votes in favour. The initiative text was incorporated into the Constitution without modification; a Federal Council dispatch in the technical sense regarding the recommendation on the initiative exists, but it contains the recommendation to accept the initiative (Federal Council Dispatch on the Popular Initiative «Yes to Complementary Medicine», BBl 2007 6089).
N. 2 The popular initiative was preceded by a health policy controversy concerning the reimbursement of complementary medicine services by compulsory health insurance. From 1999 to 2005, five therapy disciplines (anthroposophic medicine, homoeopathy, neural therapy, phytotherapy, traditional Chinese medicine) were provisionally included in the catalogue of services of compulsory health insurance (CHI). On 3 June 2005, the Federal Department of Home Affairs decided to remove these therapy disciplines from the basic catalogue of services on account of insufficient proof of effectiveness. This removal was the immediate political trigger for the initiative (Gächter/Renold-Burch, BSK FC, Art. 118a N. 2).
N. 3 In its dispatch (BBl 2007 6089), the Federal Council recommended acceptance of the initiative. It stated that the provision was not intended to enshrine specific health policy measures, but merely to oblige the Confederation and the cantons to take complementary medicine into account within the framework of their existing competences. It was expressly emphasised that the initiative would not automatically result in complementary medicine services being included in CHI (BBl 2007 6099 f.).
N. 4 Following acceptance of the initiative, Art. 118a FC entered into force immediately on 17 May 2009. The provision is located in Chapter 2, Section 5 of the Federal Constitution, which is dedicated to health and the common good (→ Art. 118 FC).
#2. Systematic Classification
N. 5 Art. 118a FC belongs to the health policy provisions of federal constitutional law. It stands in systematic connection with → Art. 118 FC (protection of health), from which the Confederation derives its general competence to regulate the healthcare system, and with → Art. 119a FC (transplantation medicine). The provision is neither a fundamental right nor a guarantee of individual entitlements, but rather a programme provision (statement of a state objective) in the sense of a guiding directive to the Confederation and the cantons (Biaggini, FC Commentary, 2nd ed. 2017, Art. 118a N. 1; Gächter/Renold-Burch, BSK FC, Art. 118a N. 4).
N. 6 In relation to fundamental rights, Art. 118a FC does not produce any independent fundamental rights effect. In particular, it establishes neither a constitutional entitlement to treatment by complementary medicine methods nor an obligation for insurers to cover the corresponding costs (Federal Supreme Court judgment 5A_154/2022 of 20 May 2022 cons. 4.4.2). In connection with fundamental rights such as economic freedom (→ Art. 27 FC), Art. 118a FC is relevant as a concretisation of the public interest that may be invoked in the regulation of complementary medicine professions.
N. 7 The allocation of competences remains unchanged by Art. 118a FC. The Confederation and the cantons act «within the scope of their responsibilities»; the provision creates no new competence titles. The existing distribution of responsibilities remains authoritative for vocational education and training (→ Art. 63 FC), health insurance (→ Art. 117 FC), and licences to practise (primarily cantonal competence, → Art. 3 FC). Art. 118a FC is a cross-cutting provision that requires a particular weighting in each of these areas (Häfelin/Haller/Keller/Thurnherr, Swiss Federal Constitutional Law, 10th ed. 2020, N. 2137).
#3. Normative Content
N. 8 Type of norm: programme provision. Art. 118a FC is an abstract programme provision (judgment 2C_168/2019 of 15 April 2019 cons. 2.3; judgment 5A_154/2022 of 20 May 2022 cons. 4.4.2). It serves an orientation function for the Confederation and the cantons, but does not establish any judicially enforceable subjective rights. Authorities and courts may invoke the provision as a maxim of interpretation, but may not enforce concrete entitlements to benefits on its basis.
N. 9 The concept of complementary medicine. The Federal Supreme Court defines the concept of complementary medicine as a catch-all term: it encompasses «in principle those treatment methods which do not belong to natural-science-based conventional medicine» (judgment 2C_168/2019 cons. 2.3, with reference to Gächter/Renold-Burch, BSK FC, Art. 118a N. 3), or which claim «to complement scientific medicine ("conventional medicine") or to offer an alternative to it» (Biaggini, FC Commentary, 2nd ed. 2017, Art. 118a N. 3). Not every practice that describes itself as complementary medicine falls within the scope of the provision; «not any form of charlatanism qualifies as complementary medicine» (judgment 2C_168/2019 cons. 2.3).
N. 10 The recognised principal disciplines of complementary medicine in Swiss practice include in particular: homoeopathy, anthroposophic medicine, phytotherapy, neural therapy, and traditional Chinese medicine (TCM) including acupuncture. These therapy disciplines have been treated since 1999 as the five relevant disciplines in political discourse. Further methods such as kinesiology may also be covered, provided they correspond to the catch-all term (judgment 2C_168/2019 cons. 2.3; Federal Administrative Court judgment B-2105/2018 of 3 January 2019 cons. 2.3).
N. 11 Duty of consideration. The wording «shall ensure that consideration is given» is deliberately left open. It obliges the Confederation and the cantons to a positive duty to act, without prescribing specific measures. «To take into consideration» means to include complementary medicine in deliberations in the relevant substantive contexts and to give it appropriate weight (Gächter/Renold-Burch, BSK FC, Art. 118a N. 3; Biaggini, FC Commentary, 2nd ed. 2017, Art. 118a N. 4). The duty has effect on several levels:
- Vocational education and training: Art. 8 let. j of the Federal Act on University Medical Professions (MedPA; SR 811.11) requires that graduates of university medical professions must acquire «adequate knowledge of the methods and therapeutic approaches of complementary medicine». This is the most important statutory implementation of Art. 118a FC at the federal level (judgment 2C_168/2019 cons. 2.3).
- Higher vocational education: In the context of the approval of examination regulations for complementary medicine therapy disciplines, Art. 118a FC serves to establish the public interest in such training courses (judgment 2C_168/2019 cons. 2.4; Federal Administrative Court judgment B-2105/2018 cons. 2.3).
- Health insurance: Art. 118a FC does not automatically create an obligation for CHI to cover services. The EAE criteria (effectiveness, appropriateness, cost-effectiveness) under Art. 32 HIA remain authoritative. However, the provision has a constitutional interpretive effect on decisions concerning the inclusion of complementary medicine services in the catalogue of benefits (Gächter/Renold-Burch, BSK FC, Art. 118a N. 5).
- Licences to practise: Cantonal law governs the conditions for admission to complementary medicine professions within the framework of the cantonal police power. Art. 118a FC requires that cantonal regulations do not unreasonably exclude complementary medicine (Rhinow/Schefer/Uebersax, Swiss Constitutional Law, 3rd ed. 2016, N. 4143).
N. 12 Competence limitation. The addition «within the scope of their responsibilities» makes clear that Art. 118a FC creates no new competence titles and does not alter the existing allocation of competences between the Confederation and the cantons. The Confederation and the cantons are obliged to take complementary medicine into account only within their respective areas of competence. The duty of consideration applies cumulatively at both levels of government (Gächter/Renold-Burch, BSK FC, Art. 118a N. 4).
N. 13 Public interest. Art. 118a FC defines complementary medicine as a public interest whose promotion state authorities are required to support. This has direct practical consequences: state measures pursuing complementary medicine objectives may invoke Art. 118a FC as a public interest within the meaning of Art. 36 para. 2 FC. Conversely, Art. 118a FC alone is not sufficient to enforce public interest considerations against overriding legal principles (freedom of trade and commerce, freedom of science) (Biaggini, FC Commentary, 2nd ed. 2017, Art. 118a N. 4).
#4. Legal Consequences
N. 14 Since Art. 118a FC is a programme provision, it does not establish any directly enforceable individual rights. Concretely, this means:
- No entitlement to benefits: Private individuals cannot invoke Art. 118a FC directly, either against the state or against social insurance carriers, to enforce benefits (judgment 5A_154/2022 cons. 4.4.2).
- Interpretive function: Laws and ordinances are to be interpreted in the light of Art. 118a FC insofar as their wording leaves room for manoeuvre.
- Legislative mandate: The legislature at both the federal and cantonal levels is obliged to give adequate consideration to complementary medicine in its activities, without any specific regulatory obligation being enforceable.
- Public interest function: Art. 118a FC legitimises regulations favourable to complementary medicine as the pursuit of a constitutionally recognised public interest (judgment 2C_168/2019 cons. 2.4).
N. 15 At the statutory level, Art. 118a FC has been implemented as follows: Art. 8 let. j MedPA (knowledge of complementary medicine as a training objective); readmission of certain complementary medicine therapy disciplines to CHI by Art. 12a HIO (in force since 1 August 2017, with restrictions to medically prescribed and performed treatments); cantonal health legislation governing licences to practise for naturopathic practitioners and complementary therapists.
N. 16 The readmission of the five therapy disciplines to CHI is linked to the EAE criteria under Art. 32 HIA and is subject to a transitional arrangement («under evaluation»). This reflects the constitutional tension between the duty of consideration (Art. 118a FC) and the effectiveness requirement (Art. 32 HIA) (Insurance Court of Aargau, judgment VBE.2017.116 of 8 June 2017).
#5. Disputed Questions
N. 17 Dispute 1: Normative content and justiciability. The classification of Art. 118a FC as a programme provision is largely undisputed in legal scholarship. Gächter/Renold-Burch (BSK FC, Art. 118a N. 4) and Biaggini (FC Commentary, 2nd ed. 2017, Art. 118a N. 1) concur in classifying the provision as a purely orientational norm without direct subjective legal content. The Federal Supreme Court has expressly confirmed this classification (judgment 2C_168/2019 cons. 2.3; judgment 5A_154/2022 cons. 4.4.2). A dissenting minority view attributing a minimal subjective legal content to the provision is not represented in Swiss literature.
N. 18 Dispute 2: Scope of the concept of complementary medicine. It is disputed whether the concept of complementary medicine in Art. 118a FC should be interpreted narrowly (only scientifically evaluated methods) or broadly (all methods not belonging to conventional medicine). Gächter/Renold-Burch (BSK FC, Art. 118a N. 3) advocate a broad interpretation as a catch-all term. Biaggini (FC Commentary, 2nd ed. 2017, Art. 118a N. 3) places greater emphasis on the complementary character (complementary rather than alternative). The Federal Supreme Court essentially follows the broad interpretation, but excludes «not any form of charlatanism» from the concept (judgment 2C_168/2019 cons. 2.3), without developing a clear criterion of demarcation.
N. 19 Dispute 3: Consequences for health insurance. The question of whether Art. 118a FC compels the legislature to readmit complementary medicine therapies to CHI, or whether it is limited to a mere duty of consideration, is controversial. The Federal Council dispatch expressly states that automatic inclusion in CHI would not be a consequence of the initiative (BBl 2007 6099 f.). Gächter/Renold-Burch (BSK FC, Art. 118a N. 5) confirm this reading; the legislature enjoys a wide margin of discretion. A more far-reaching position seeking to derive from Art. 118a FC a constitutional obligation to take complementary medicine into account within basic insurance has not prevailed. The HIO provision in force since 2017 (Art. 12a HIO) represents a political compromise that falls short of a constitutional obligation.
N. 20 Dispute 4: Relationship to the EAE criterion. The relationship between the duty of consideration (Art. 118a FC) and the criterion of effectiveness according to scientific methods (Art. 32 para. 1 HIA) is scientifically contested. Proponents of special treatment for complementary medicine methods argue that Art. 118a FC provides a constitutional basis for facilitated inclusion in the CHI catalogue of services; the expression «according to scientific methods» in Art. 32 HIA is to be interpreted in conformity with the Constitution in light of Art. 118a FC. The opposing position (Rhinow/Schefer/Uebersax, Swiss Constitutional Law, 3rd ed. 2016, N. 4143) maintains that Art. 118a FC does not modify the EAE criterion and does not establish any exception to the requirement of scientific proof of effectiveness.
#6. Practical Notes
N. 21 Vocational education and training: Providers of higher professional examinations for complementary medicine therapy disciplines may invoke Art. 118a FC to establish the public interest within the meaning of Art. 25 para. 2 let. a VET Ordinance. The SERI must take this interest into account in approval decisions (judgment 2C_168/2019 cons. 2.4; Federal Administrative Court judgment B-2105/2018 cons. 2.3). The criterion of public interest applies to all recognised complementary medicine methods, but not to practices falling outside the catch-all term.
N. 22 Professional practice and cantonal law: The licence to practise complementary medicine professions is governed by cantonal health law. Art. 118a FC requires that cantonal regulations do not unreasonably disadvantage complementary medicine. Of practical relevance is the demarcation between licensed professions (with a federally recognised diploma) and activities not requiring a licence; this demarcation also has value added tax consequences, since only positively authorised professional activities qualify as «admission to medical treatment» within the meaning of Art. 35 para. 1 let. b VAT Ordinance (BGE 149 II 385 cons. 4.3).
N. 23 Health insurance: No insured person can, on the basis of Art. 118a FC, claim reimbursement of complementary medicine treatments from CHI. The obligation to cover services is governed exclusively by Arts. 24–33 HIA. The EAE criterion remains authoritative. For the five therapy disciplines (homoeopathy, anthroposophic medicine, phytotherapy, neural therapy, TCM), a limited coverage obligation has existed since 2017 under Art. 12a HIO, provided that the treatment is medically prescribed and performed (Insurance Court of Aargau, judgment VBE.2017.116).
N. 24 Tax law: In value added tax law, complementary medicine treatments are exempt from tax (Art. 21 para. 2 item 3 VATA) only if the service provider holds a positive cantonal licence to practise or admission. Mere cantonal toleration without explicit authorisation does not suffice. Owing to the reference to cantonal health law, the same service may be taxable or exempt depending on the canton (BGE 149 II 385 cons. 5). Practical note: Complementary medicine practitioners and therapists must carefully examine the legal position in the respective canton.
N. 25 Judicial enforcement: Art. 118a FC cannot be invoked by private individuals before courts or authorities as the basis for direct entitlements to benefits (judgment 5A_154/2022 cons. 4.4.2). However, the provision may be invoked as an aid to interpretation in the examination of cognition where authorities or courts assess the normative content of provisions concerning complementary medicine. A corresponding application for expert assessment of complementary medicine alternatives cannot be based on Art. 118a FC alone.
#Bibliography (Selection)
- Biaggini Giovanni, Kommentar zur Bundesverfassung der Schweizerischen Eidgenossenschaft, 2nd ed. 2017, Art. 118a N. 1–5
- Gächter Thomas/Renold-Burch Stephanie, in: Waldmann/Belser/Epiney (eds.), Basler Kommentar Bundesverfassung, 2015, Art. 118a N. 1–6
- Häfelin Ulrich/Haller Walter/Keller Helen/Thurnherr Daniela, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 2137
- Rhinow René/Schefer Markus/Uebersax Peter, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 4143
- Federal Council Dispatch on the Popular Initiative «Yes to Complementary Medicine», BBl 2007 6089
#Cross-references
- → Art. 3 FC (residual cantonal competence in the healthcare system)
- ↔ Art. 27 FC (economic freedom; licence to practise complementary medicine professions)
- → Art. 36 FC (restriction of fundamental rights; public interest)
- → Art. 117 FC (health and accident insurance)
- ↔ Art. 118 FC (protection of health; general federal competence)
- → Art. 190 FC (applicable law; federal acts such as HIA take precedence)
- → Art. 32 HIA (EAE criteria as statutory limit)
- → Art. 8 let. j MedPA (training objective: knowledge of complementary medicine)
Art. 118a BV
#Case Law
The case law on Art. 118a BV is still relatively sparse, as the provision only entered into force in 2009. The existing decisions primarily concern the delimitation of the concept of complementary medicine and its implementation in the field of vocational education and training.
#I. Concept and Delimitation of Complementary Medicine
Judgment 2C_168/2019 of 15 April 2019
The Federal Supreme Court defined the concept of complementary medicine as a catch-all term and clarified its constitutional content. The decision concerned the approval of an amended examination regulation for complementary therapists, which was to be supplemented with the method of kinesiology.
«The concept of complementary medicine refers, in the sense of a catch-all term, to those treatment methods that do not belong to scientifically oriented conventional medicine.»
The Federal Supreme Court confirmed that Art. 118a BV constitutes a programmatic norm that obliges the Confederation and the cantons to take complementary medicine into account within the framework of their existing competencies. The norm defines complementary medicine as being in the public interest.
Judgment 2P.198/2006 of 9 May 2007
Even before Art. 118a BV entered into force, the Federal Supreme Court dealt with the delimitation of complementary medical activities. The decision concerned the professional practice licence as a naturopath in the Canton of Bern.
«For professions in complementary medicine - including the activity as a naturopath - there are no federally or intercantonally standardised professional certificates and no uniformly regulated courses of study.»
The Court held that no clear definition of the activity of the naturopath was apparent, which illustrates the regulatory challenges in the field of complementary medicine.
#II. Consideration in Health Insurance
VBE.2017.116 of 8 June 2017 (Insurance Court of Aargau)
The Aargau Insurance Court clarified the requirements for the obligation to provide benefits for complementary medical treatments. The case concerned the cost coverage for classical homeopathy by disability insurance.
«For medical precautionary measures in the field of Medical Classical Homeopathy, there is an obligation on the part of the mandatory health insurer and thus the IV to provide benefits when the precautionary measures have been taken by doctors with further training in homeopathy that corresponds to the Skills Programme in Homeopathy (SVHA).»
The Court proceeded from the legal fiction that the requirements of scientific validity, efficacy, appropriateness and economic efficiency are met for homeopathic preparations included in the specialities list.
#III. Tax Deductibility of Complementary Medical Treatments
Judgment 2C_103/2009 of 10 July 2009
The Federal Supreme Court clarified the requirements for the tax deductibility of costs for complementary medical treatments. The case concerned cranio-sacral therapy with a naturopathic practitioner.
«The requirement of medical prescription forms, according to the case law of the Federal Supreme Court, a suitable delimitation criterion between therapeutic healing treatments on the one hand and measures to enhance general well-being on the other.»
The Court confirmed that medical prescription is also required for alternative medical treatments in order to qualify as deductible medical expenses. The treatment must also be carried out by a "recognised" therapist.
#IV. Vocational Education and Training and Quality Assurance
Judgment of the Federal Administrative Court B-2105/2018 of 3 January 2019
The Federal Administrative Court dealt with the requirements for higher professional examinations in the field of complementary therapy. The decision was later confirmed by the Federal Supreme Court in 2C_168/2019.
The Court held that the approval of examination regulations for complementary medical professions must meet the general criteria of the Vocational Education and Training Ordinance, in particular the requirement of a public interest and quality assurance.
#V. Medical Vaccination Decisions for Persons under a Care Order
Judgment 5A_154/2022 of 20 May 2022
Although this decision primarily concerns adult protection law, it shows the practical effects of the extended concept of medicine, which can also include complementary medical approaches. The case concerned the COVID-19 vaccination of a person with Down syndrome under a care order.
The Federal Supreme Court emphasised the importance of a holistic consideration of medical decisions, which can also take alternative treatment approaches into account, insofar as they correspond to the child's welfare.
#VI. Development Trends
The case law shows increasing recognition of complementary medical methods while emphasising quality assurance. Central is the delimitation between serious complementary medical approaches and unscientific practices. The Federal Supreme Court emphasises that Art. 118a BV does not protect any form of charlatanism, but only covers recognised complementary medical methods.
The cantonal courts increasingly apply uniform criteria when assessing complementary medical questions, whereby medical prescription and the professional qualifications of the treating persons are of central importance.