In my last post I promised I would provide details about the new piece of statutory legislation that was recently enacted by the Colombian Congress on the right to health, but first I should talk a little more about the prior jurisprudence that set the stage for it–especially since there’s so much of it. Every year, hundreds of thousands of right-to-health cases go before judges in Colombia, and some estimate that up to one out of every five Colombians has used the judicial system to gain access to health services.
By far, most of these cases are won by the plaintiff. And they should be.
Nearly 90% of the cases that involve procedures, and over 30% of the cases for medications, involve benefits that are actually already covered by the public benefit package (plan obligatorio de salud, or POS). And most of these aren’t over particularly expensive, complicated, or scarce benefits in the POS. The most frequently litigated medications are omeprazole (Prilosec) and oxygen. The most frequently litigated procedures aren’t even the procedures themselves, but specific parts of the procedures that aren’t explicitly listed in the bundle of benefits covered by the POS. For example, the POS covers colostomies, but the insurance companies systematically deny the colostomy bags. “We’ll open the hole in your flank, but it’ll be on you to figure out what to do with the excrement that’ll start oozing out. . .”
I bring this up not only because it’s outrageous–which it is–but because it should be one of the central elements of the discussion as we evaluate both the Constitutional Court’s T-760 decision (which specifically addressed this issue as of of the main elements of the ruling) as well as the new piece of legislation that was enacted by Congress.
The philosophical questions about the “contents” of the right to health, the debates in constitutional law about procedural approaches to substantive questions, and the social and political challenges involved in setting up legitimate and deliberative participatory processes are certainly much more profound and exiting than trying to get insurance companies to pay for drugs to prevent rejection after an organ transplant (another typical type of “integral care” case).
But the fairness and legitimacy of prioritization aren’t the only things Colombians need to keep their eye on as the country goes through this new cycle of reform–there clearly are other more cynical and insidious mechanisms for limiting healthcare at play.
And though there might be good ground for skepticism about whether the language in the new law will allow fair and legitimate priorities of any sort to be set in the public sphere, it also appears that the people running the insurance companies responsible for delivering the POS have already set their own priorities.
I wonder whether litigation will lead to the right results (i.e. equal access for all to a fair share of health benefits) in cases about prioritization compared to cases about regulation. But moreover, I wonder whether either of these cases should be getting to courts in the first place–although the reasons why I believe they shouldn’t are very different in each case.