Issues in the Justiciability of the Right to Health

Abstract

The judicialization of health care is increasing dramatically in the last decade worldwide. Although this judicial activism has undoubtedly contributed to guaranteeing the protection of this right, many challenges remain despite this progress. The objective of this book is to evaluate the different challenges and opportunities that States have in the protection of the Right to Health while maintaining a balanced level of judicial activism. More specifically, it looks to identify in what contexts judicial activism is justified in order to protect the right to health by analysing the dynamics of litigation as well as its consequences. The book starts by presenting a case in Spain. Juan Antonio Maldonado shows how conflicts between different institutions might arise as a result of disagreements about the protection of the right to health in contexts of economic crisis. As a result of that, the Court had to make difficult decisions about how to solve such conflicts. It then presents an experience in Slovakia, Central Europe. Barbara Pavlíkova examines the Health system in Slovakia describing how the health system has evolved in this country after the fall of communism and how the health system is currently being affected by many factors. In a similar vein, Cippitani and Colcelli focus on the topic of Social Rights and how they are recognized in the Italian context, and finally, Rodolfo Gutiérrez examines the case of Colombia, scrutinizing how the system, despite expanding its level of coverage, is currently generating a high level of judicialization of health. The concluding chapter carries out a comparative analysis of the cases studied in order to generate some recommendations.

Keywords: Health Care, Irregular Immigration, Justiciability, Social Rights, Universality.

Resumen

La judicialización de la atención médica ha aumentado dramáticamente en la última década en todo el mundo. Si bien este activismo judicial ha contribuido indudablemente a garantizar la protección de este derecho, subsisten muchos obstáculos a pesar de los avances en el tema. El objetivo de este libro es evaluar los diferentes desafíos y oportunidades que tienen los estados para proteger el derecho a la salud, al tiempo que mantiene un nivel equilibrado de activismo judicial. Más específicamente, busca identificar en qué contextos se justifica el activismo judicial para proteger el derecho a la salud mediante el análisis de la dinámica de los litigios y sus consecuencias. El libro comienza presentando un caso en España: Juan Antonio Maldonado muestra cómo pueden surgir conflictos entre diferentes instituciones como resultado de desacuerdos sobre la protección del derecho a la salud en contextos de crisis económica. En consecuencia, la Corte tuvo que tomar decisiones difíciles sobre la manera en que se deben resolver estos conflictos. Posteriormente, se presenta una experiencia en Eslovaquia, Europa Central. Barbara Pavlíkova examina el sistema de salud eslovaco que describe su desarrollo después de la caída del comunismo y cómo muchos factores lo están afectando actualmente. En una línea similar, Cippitani y Colcelli se centran en el tema de los derechos sociales y en cómo se reconocen en el contexto italiano. Y finalmente, Rodolfo Gutiérrez examina el caso de Colombia, analizando cómo el sistema, a pesar de ampliar su nivel de cobertura, está generando actualmente un alto nivel de judicialización de la salud. El capítulo final lleva a cabo un análisis comparativo de los casos estudiados para hacer algunas recomendaciones.

Palabras clave: Atención a la salud, inmigración irregular, justiciabilidad, derechos sociales, universalidad.

Issues in the Justiciability of the Right to Health

edited by

rodolfo gutiérrez silva

© Ediciones Universidad Cooperativa de Colombia, Bogotá, June 2019

© Rodolfo Gutiérrez Silva (Ed.), Juan Antonio Maldonado Molina, Roberto Cippitani, Valentina Colcelli, Barbara Pavlikova

ISBN (impreso: 978-958-760-134-3

ISBN (PDF): 978-958-760-135-0

ISBN (EPUB): 978-958-760-181-7

DOI: https://dx.doi.org/10.16925/9789587601350

Editorial team

editor in chief

Julián Pacheco Martínez

editorial management specialist

Daniel Urquijo Molina

specialist in editorial production (books)

Camilo Moncada Morales

specialist in editorial production (research journals)

Andrés Felipe Andrade Cañón

editorial analyst

Claudia Carolina Caicedo Baquero

administrative assistant

Yeraldin Xiomara Súa Páez

Editorial process

copy editing and proofreading

Philippe White

design and layout

Kilka Diseño Gráfico

printer

Shopdesign S.A.S.

Printed in Bogotá, Colombia. Legal deposit according to the Decreee 460 de 1995

Contents

List of Contributors

Preface

Introduction

The Exclusion of Foreigners in an Irregular Situation from the Right to Health Care in Spain

Juan Antonio Maldonado Molina

Justiciability of the Right to Health and the Heath System in Slovakia

Barbara Pavlíková

Public and Private Enforcement of Social Rights

Roberto Cippitani and Valentina Colcelli

The Justiciability of the Right to Health in Colombia

Rodolfo Gutiérrez Silva

General conclusions

Rodolfo Gutiérrez Silva

List of Contributors

Juan Antonio Maldonado Molina

Professor of Labour Law and Social Security at the University of Granada, Spain. Specialised in Social Security Law, having published more than seventy works regarding a variety of subjects such as retirement pensions and dependency benefits. His doctoral thesis, related to the protection of pensioners, received First Prize for Research from the Ministry of Labour and Social Security. He has participated as a speaker and lecturer in numerous courses including courses of the UIMP-Santander, the University of Granada, the University of Jaén, the University of Málaga, the University of Complutense, the University of Oviedo, the University of Santiago, San José of Costa Rica, Valparaiso and Santiago of Chile. At the University of Granada he currently holds the titles of: Director of the postgraduate program of Masters of Laws of Social Security and Direction and Management of Social Entities at the University of Granada, Deputy Coordinator of the Masters in Gerontology, Dependency and Protection of the Elderly and Institutional Secretary of the Department of Labour Law.

Email: jmaldo@ugr.es

Roberto Cippitani

Professor at the Universitá degli Studi di Peruggia and Jean Monnet Chairholder; Academic Coordinator of the Jean Monnet Centre of Excellence “Rights and Science”.

Full Professor on Private Law (professore straordinario); Lecturer: Biolaw; Law of Information; Law of Research and Innovation.

Expert Evaluator (ID: EX2014D221002) for the European Commission (Programme Horizon 2020, MSC-IF).

Ethics Advisor; Legal Advisor of Universities and Centres of Research on legal and contractual issues of research and innovation.

Orcid ID: orcid.org/0000-0002-0615-2713 ResearcherID: K-9992-2017 Scopus Author ID: 35233180900.

Email: roberto.cippitani@unipg.it

Valentina Colcelli

Valentina Colcelli is a Researcher for the National Research Council (Italy)–IFAC, Institute “Nello Carrara” (via Madonno del Piano, 10 Sesto Fiorentino, Firenze). She is the Module Leader of the J. Monnet European Module called “Europeanisation through Private Law Instruments” (EuPLAW) and a Member of the Managing Board of the Jean Monnet Centre of Excellence in “Research and Science” (R&S) at the University of Perugia. Her main research interests focus on the interaction of domestic and European law in shaping rights and interests, and on market regulation. She also has a research interest in a general reflection on the juridical good beyond the EU legal system, internal market regulation, legal and ethical issues in research and innovation activities, contracts for technology transfer and effective judicial protection of biodiversity in light of fundamental rights. She is also an expert for the European Commission Directorate-General for Research and Innovation/Infrastructures _ ERIC.

Email: valentina.colcelli@cnr.it

Barbara Pavlikova

Barbara Pavlikova currently works at the Department of Social Work and Social Sciences, University of Constantine the Philosopher in Nitra, Slovakia - Univerzita Konštantína Filozofa v Nitre. Barbara actively researches Health Law, Public Health, Social Policy and European Law. At the same time, she is a PhD student in the field of Public Law at the University of Groningen, the Netherlands. She is the author of several monographs dealing with health care issues and author or co-author of articles focusing on different aspects of European Law.

Email: barbarapavlikova@gmail.com.

Rodolfo Gutiérrez Silva

PhD (Candidate) in Law, University of Hamburg, Germany. LLM Master of Laws from the University of London and BSc in Social Policy and Sociology from the London Metropolitan University, UK. He has lectured at the postgraduate and undergraduate level in 10 countries at renowned universities such as the University of Padua, Italy, University of Granada, Spain, Constantino the Philosopher University, Slovakia and The University of Guadalajara, Mexico, among others. At the same time he has carried out advisory and consulting activities for various organisations and institutions in the United Kingdom such as Amnesty International. Author of several publications that have been translated into several languages. He has carried out various research projects and presentations at national and international events on issues related to Human Rights and the Justifiability of Economic, Social and Cultural Rights. He currently teaches and performs research for the Faculty of Law of the Cooperative University of Colombia.

Email: rodolfo.gutierrez@campusucc.edu.co

Preface

Without any doubt, we have made some progress in the protection of the right to adequate health worldwide. However, new risks embedded in the globalisation process are generating complex changes in the model of health that has traditionally characterised different countries. These changes are clearly affecting the welfare of millions of people and triggering, what the economic historian Karl Polanyi might call, a triple reaction in a system led by judges who are looking to make a contribution to solving structural problems that are generating, in different contexts, a massive and systematic violation of human rights. The objective of this judicial activism is to generate a new balance in the system through the adoption of jurisprudential innovations. However, such judicial intervention is unfortunately not yet able to generate a strong impact on people´s lives. This book provides evidence of the need for greater intervention by judges in politics in order to ensure the necessary checks and balances whilst protecting constitutional values such as equality and liberty. Judges have traditionally been criticised because of their lack of legitimacy, however, if judges do not interfere in politics, the principles of the constitution might not be fulfilled.

Generally speaking, there are two debates in relation to the issue of Justiciability: the debate about the “challenges faced by the Justiciability […]” or Reactionary Justiciability and the debate about the “challenges raised by the Justiciability” or Transformative Justiciability. Reactionary Justiciability implies the assumption that the recognition of the Human Right to Health by Courts, although possibly affecting principles such as the Separation of Powers, Democracy, Legitimacy and Financial Sustainability —in the case of the provision of expensive medicines or universal accessibility—, is justified because if judges do not interfere — in politics—, the right to health would be massively violated. This debate has been led by many NGOs, the International Commission of Jurists and many academics worldwide. Without any doubt, on a national level, many countries have recognised the right to health in their constitutions. In a similar vein, on a regional level, the right to health has also been recently recognised by Courts as an autonomous right protected by Article 26 of the American Convention. For example, in Poblete Vilches y Otros vs Chile (2018) the Interamerican Court declared the international responsibility of the Chilean state for not guaranteeing the right to health. This debate has also been studied by academics in 4 separate parts:

1. Recognition —of the right to health by Judges—.
2. Remedies issued by Judges.
3. Supervision of implementation of judgments.
4. Impact.

In the last twenty years we have made some progress in the recognition of the right to health by Courts, therefore, the challenges that we have today are certainly different:

1. The type of remedies that courts should order to protect the right to health —Judges ordering a structural transformation of an entire health system— vs Individual remedies — Judges ordering a treatment or a medicine—.
2. The type of monitoring strategies for the implementation of judgments —in India, the Court used Commissioners to monitor the implementation of judgments while in Colombia—, public hearings were led by the Constitutional Court (Tribunal Constitucional or TC) with the participation of several stakeholders.
3. The type of impact —high, medium, low— achieved in the Health System through Judgments.

On the other hand, Transformative Justiciability adopts a macro perspective to study the actions of different actors. It looks at the causes and the consequences of Justiciability. Some countries, for instance Colombia and Brazil, are currently experiencing high levels of litigation and this undoubtedly reflects a real flaw in their policies that in turn is triggering violations of the right to health. I believe that the dynamics —impact and causes— of health care litigation vary among countries, not only in terms of their legal models and health systems, but also due to state constraints including structural dysfunctions or conditions relating to, for example, the conduct of third parties —such as corruption and elite capture— as well as political instability, lack of regulation or mechanisms of surveillance. This book is looking to make a contribution to the debate of transformative justiciability of the right to health.

rodolfo gutiérrez

bogotá, 6 february 2019

Introduction

Despite recent improvements in the protection of the right to adequate health1, for instance, some health indicators have improved (Lamprea & García, 2016) and budgets have slightly increased in terms of resource allocation, violations of the right to health continue to grow. A clear failure of public policies adopted by States might be considered as one of the central causes of these violations and as a result of that, in some jurisdictions, judicial activism has emerged with the objective of generating a balance in the system by protecting the rights of the most vulnerable.

Generally speaking, this judicial activism is not only expressed in terms of the level of international influence of Courts —or the capacity and frequency of Courts to invalidate legislation— but could also be interpreted in relation to the level of their judicial practice. This entails the capacity of courts to recognise social rights, to issue diverse type of remedies and deliver some monitoring of social rights judgments. In some cases and contexts, this type of judicial activism may even have the potential of influencing Public Policies at the national, regional and international level particularly when policies are (re)formulated as part of the process of implementing judgments (Gloppen, 2005)2. In a growing number of countries, litigation has been used as a strategy to advance the right to health of people by transforming and formulating policies3. In Colombia, for example, in 1999 there were just 21,301 writs of protection —Tutela actions—, however, by 2008 this number increased dramatically to 142,957. As a result of that, the Court issued Decision T-760 in 2008. Through this structural judgment “the court collected twenty-two ‘tutelas’ —twenty brought by individuals and two brought by providers— which the Second Review Chamber of the Court selected in order to illustrate systemic problems in the health system” (Yamin, 2011, p. 117). One of the objectives of this structural dialogic judgment was to reduce the high level of writs of protection by unifying the plans of health which were unequal as well as recognise the right to health as a fundamental right in order to fulfil its obligations of protection under international law. In Brazil, on the other hand, and according to Ferraz (2016) litigation has increased from 387 in 2003 to 12,811 in 2011 and just at the federal level, this has led to a massive and fragmented response from Courts regarding individual remedies. At the same time, Costa Rica after designing a health system that focuses on universal accessibility has also experienced problems in this area, which has led to a significant increase in individual litigation. This trend will hardly decrease unless substantial changes are made to the health system (Piza, 2016). Health care litigation and judicial activism are also growing in countries such as México where an increase in litigation is expected due to the constitutional reforms of 2011 (Charvel, 2016), and also, in Uruguay where increases in litigation are expected to severely impact upon financial sustainability in the medium and long-term (Pereira, 2016). On a regional level, the right to health has also been recognised as an autonomous right protected by Art. 26 of the American Convention. In Poblete Vilches y Otros vs Chile, the Interamerican Court declared the international responsibility of the Chilean state for not guaranteeing the right to health. In another important case4, the Interamerican court stated that an absolute ban of in-vitro fertilisation violated several rights including: privacy, family and personal integrity and ordered the State to incorporate access to in-vitro fertilisation into its health system (Corte IDH, 2012).

Using courts to solve public policy issues has led some critics to suggest that Judges should not interfere with politics since they lack institutional capacity and their actions impact negatively on democratic processes as well as the principle of separation of powers, therefore, according to this perspective judges lack legitimacy. This topic has also generated a debate about the impact of litigation on policies and the protection of health with some academics arguing against litigation since they believe that, in practice, litigation does not benefit the poor. For instance, in Brazil, health expenditures have been allocated mainly to middle-class groups who are benefiting from expensive medicines and treatments (Ferraz, 2016). This position gives priority to the financial sustainability of the health system and suggests that as long as the litigation process allows middle classes access to health services, it could clash with the limited availability of resources that health systems face today and could even increase levels of inequality in the provision and access to health care (WorldBank, 2011). Therefore, proponents of this view sustain that the impact of litigation has been regressive since it is reproducing inequalities and it is affecting the financial sustainability of health systems. Contrary to this view, another group of commentators have pointed out that litigation has brought a positive impact particularly in the protection of the right of the poorest (Biehl, Socal & Amon, 2016). Thus, according to this view litigation is contributing to the fulfilment of the principle of equality. Alternatively, Uprimny (2016) argues that the impact (in Colombia) has been mixed. On one hand it has been regressive or negative because the writs of protection have benefited only middle classes thereby reproducing inequalities, however, at the same time it has been positive because the remedies of Decision T-760/08 have promoted equality by ordering the Government the unification of the plans of health. In a similar vein, Andia (2017) suggests that the direct impact of Decision T-760/08 has been positive and includes not only the unification of the Plans of Health within the contributory and the subsidised regime in Colombia but also all the reforms of health policies led by the new Statutory Law 1751 of 2015 that recognises health as a fundamental right and also Law 1438/11. Decision T-760/08 also had symbolic effects in Colombia since it has produced a change in knowledge and attitude, thus, today users, as well as public servants, talk about health in terms of rights and not in terms of public services or charity. This type of activism, whether fragmented or structural, as well as the increase in litigation, raises different type of questions, for instance, “To what extent can Courts solve public policy problems?” And if so, “In what type of contexts could judicial activism make a strong impact in order to protect the right to health given the failure of public policies?” Finally, and crucially for this research, “What policy reforms are needed in order to protect the right to health as well as to strengthen the institutional capacity of public government institutions?”.

Unfortunately, most of the literature that has studied this phenomenon tends to be fragmented. Thus, there are very few multidisciplinary studies that evaluate and capture not only the problem of failures of public policies but at the same time their relationship with the degree of judicial activism. In other words, in the last twenty years, we have witnessed an increase in research that evaluates how the new judicial activism has impacted upon the protection of health and social rights through litigation by measuring its impact. Unfortunately, this type of research does not focus well enough on generating proposals to improve public policies in the field of health while maintaining a balanced judicial activism. The literature is indeed very fragmented and includes in-depth single-country studies that evaluate the impact of individual lawsuits filed by rights holders with a specific health condition in a specific region as well as systematic reviews that evaluate different characteristics of lawsuits. At the same time, this literature seems to ignore how macro processes or structures might be affecting States in the delivery of effective policies. What the literature reveals is a problem related to access to health services caused by weaknesses in health systems that are unable to fulfil the obligations of guaranteeing adequate health with dignity. Indeed, missing in the literature are studies that evaluate in what type of contexts judicial activism, whether in its strongest or weakest forms, might contribute to the protection of the right to Health formulating at the same time some policy reforms in order to strengthen the institutional capacity of public government institutions. Studies that evaluate judicial activism and their interaction with public policy strategies are urgently needed in some countries in order to protect the right to health by transforming the way public institutions operate. Therefore, a careful comparative analysis of sociological aspects, as well as social policy strategies, is necessary in order to evaluate through a multidisciplinary study more general patterns that might be triggering this complex process. The approach also requires specific knowledge of the legal and health systems, social policies and a sociological imagination. Despite some advances, we do not yet have a clear grasp of the relationship between health care litigation, the right to health and public policy variables. Therefore, this book seeks to contribute to filling a gap in the literature and the specific aim is to produce some information that will have an impact on the different institutions responsible for the design of public health policies such as ministries and government departments, as well as research groups and civil society organisations, in order to improve public policies. This type of research is also relevant since the number of people being denied access to health in these countries is very high and growing disproportionately.

The objective of this book then is to evaluate the different challenges and opportunities that States have in the protection of the right to health while maintaining a balanced level of judicial activism. More specifically it looks to identify in what contexts judicial activism is justified in order to protect the right to health by analysing the dynamics of litigation as well as its consequences. The book will try to provide solutions through different policy reforms that States could undertake in order to have a greater impact, thus, contributing to guaranteeing constitutional principles and values. To appreciate the complexity of this phenomenon requires not only an understanding of the legal aspects but also the undertaking of a multidisciplinary and comparative study that includes the analysis of the various health systems and the structural dysfunctions that affect them. Therefore, the methodology includes a qualitative approach, under the methodological design of a comparative documentary research.

Comunidad Campesina de Santa Barbara vs Peru.