Draft Law that regulates healthcare rights and duties was declared Constitutional

In June 2013, the Colombian Congress approved the Statutory Draft Law “209/13” (Senate) and “267/13” Representative Chamber (hereinafter The “Draft”) which seeks to regulate the fundamental right to healthcare access and other aspects related.

Subsequently, in accordance with articles 153 and 241 8th numeral of the Colombian Constitution, as the Draft Law was a project of statutory law, it had to pass through   the Constitutional Court’s review process.

On May 29, 2014, the Constitutional Court approved the Draft on Sentence C-313 of 2014, which contains the analysis of the constitutionality of the Draft. Now, the sentence is expected to be published in the official journals in the upcoming weeks. Once the Sentence is published, the file will be send to the Congress in order to continue the legislative process until it becomes a law, once it has the President of the Republic’s approval signature.

The Draft´s features are briefly listed and described as follows:

1.Healthcare access has been catalogued as a public service, essential and mandatory. Additionally, the State will manage and regulate the performance, direction, supervision, organization, regulation, coordination, and control of this public service. These functions cannot be delegated by the State.

2.The State must guarantee the access to healthcare services and, pursuant to that obligation, the State shall (i) formulate and adopt policies that promote: healthcare, disease prevention and care, along with the sequels’ rehabilitation; (ii) analyze the results of the healthcare system, in accordance with its principles and the way that the system is developed and (iii) intervene in the market of medicines, devices and healthcare supplies.

3.The healthcare system will be guided under the principles that must be applied by the State-owned institutions and healthcare service providers. Some of these principles are: (i) universality, which means that the healthcare service is guaranteed to all residents in Colombia. (ii) Pro Homine, meaning that the State and the parties involved in the healthcare system must interpret the law in favor of the users and (iii) freedom of choice, principle that establishes the right of users to select the healthcare provider.

4.The Draft also established a series of rights and duties of  the healthcare system´s users:

•Rights: (i) the complete use of services and technologies, in order to obtain a comprehensive, timely, and quality service; (ii) to receive all healthcare benefits in accordance with the healthcare law; (iii) privacy; (iv) to be respected on their will of donating organs or not, and (v) not to be charged with administrative responsibilities whose subjects are others intervening in the system.

•Duties: (i) to look after the user and the user’s family self-care and disease prevention; (ii) to follow all recommendations given through the promoting and prevention programs; (iii) to use adequately and rationally the benefits and resources of the system, and (iv) to follow the system’s normativity.

5.The access, in cases of emergency, to vital services and technologies, will not require any administrative authorization.

6.The system’s services and technologies provided must accomplish the following conditions: (i) they must not have cosmetic or luxury purposes; (ii) there must be scientific evidence of their safety, effectivity and clinical efficiency and (iii) they must not be in their experimental phase.

7.The National Government will design the national pharmaceutical policy regarding the financing, acquisition, storage, production, purchase and distribution of the supplies, technology and medicines.

Even though the Constitutional Court declared, in general terms, that the Draft was suited to the Constitution, it made the following annotations:

1.The mechanisms that could be created to protect the access to healthcare must not modify or affect the constitutional action for the protection of fundamental rights.

2.The criteria of fiscal sustainability of the system, contained in literal i) article 5, will not justify the refusal of a healthcare service.

3.The Court declared unconstitutional all clauses containing limitations or restrictions to the access to healthcare services, because the restrictions must be contained on a unique list, with the purpose of avoiding doubts about the healthcare service.

4.When the inclusion of services and/or technologies in the system is the center of a debate, the criteria of exclusion must be taken as the central standard, because it is expected that all services and/or technologies are included in the system unless they are legally excluded.

Finally, it is important to highlight that some concepts of the Draft were declared unconstitutional. Some of them are the following: (i) "unexpectedly and arbitrary manner" contained in literal d) of the second paragraph of Article 6; (ii) the terms "required with necessity" and "that can aggravate the condition of health of persons", contained in literal e) of the second paragraph of Article 6 also; (iii) the entire paragraph of Article 8; (iv) the following expressions contained in Article 10: "reasonable" and "effective" in literal q) and "in need" in paragraph 1; and (v) the expressions "initial" and "and in those circumstances determined by the Ministry of Health and Social Protection" of  Article 14, among others.