A fundamental right to health?

So they’re
saying in Colombia…
September 13, 2013 jurrutia Global Health, Health Care Reform, Health Law Policy, International, Judicial
Opinions, Julian Urrutia
Perhaps surprisingly to some, Colombia has come much further along the path towards
universal coverage than many developed countries in the world, including the US. Most of
this progress happened precipitously starting in the early 1990’s: while in 1993 fewer than
5% of people in the lowest income quintile had access to any health care that was not paid
for entirely out-of-pocket, by 2011 over 85% were covered by a social security system that
provides access to a basic package of health benefits. Although there are persisting
problems in terms of the effectiveness of coverage, many of us would argue the progress
has been real and frankly impressive. But none in Colombia would deny that there is still
much room for improvement, and that the government has inexcusably failed to take
advantage of numerous opportunities over the past two decades to make those
improvements.

These failures led to a landmark decision on the part of the Constitutional Court in 2008,
which through its jurisprudence in the T/760 decision of 2008 adjudged the right to health
to be a fundamental constitutional right, thereby permitting that specific demands by
citizens be submitted for constitutional judicial review through the tutela protection writ
(the Colombian version of the amparo). The decision has been seen by many as a trail-
blazing approach to protecting the fundamental rights of the most vulnerable individuals in
Colombia from the effects of persistent negligence on the part of the Government.

However, the Court’s abstention from specifying the scope and content of the right to health
has resulted in individual claims being resolved in a disarticulated manner by individual
judges throughout the country on a case-by-case basis. This has sparked concerns of formal
equality and universality with respect to treatments and services made available to citizens
by the courts, and about the impact of widespread litigation on the enforceability of
prioritization decisions and the financial sustainability of the health system.

Seeking to fill this normative vacuum, in June of this year Congress enacted legislation
“regulating the Fundamental Right to Health” that is currently being reviewed by the
Constitutional Court. The stated objective is to “guarantee the fundamental right to health,
regulate it, and establish the mechanisms for its protection.” It sets out to specify the nature
and the content of this fundamental right, specify the essential principals governing it, and
define the state’s obligations in relation to it. This is certainly an innovative piece of
legislation in the regional context, and I’ll be providing more details further on (hopefully
even an English translation of the text itself!), but since I’m certainly not an expert on
comparative law, for now I’ll simply close with a question for readers: what similar laws been
enacted elsewhere in the world?