Medicine doctor and stethoscope in hand touching icon medical network connection with modern virtual screen interface, medical technology network concept

Regulation of Access to Clinical Data in Chile’s New Constitution

By Gabriela Y. Novoa and Alexis M. Kalergis

As Chileans prepare to vote on whether or not to create a new Constitution, an issue worth considering relative to this reform concerns access to clinical data.

The Political Constitution of the Republic of Chile dates back to 1980, and, in the past decades, has undergone several amendments, including key reforms in August 1989, August 2005, and August 2019. As part of this last modification, it was agreed to organize a plebiscite to democratically decide whether or not to elaborate an entirely new constitutional text. If the alternative of generating a new constitution is adopted, it will consist of a constitution written from square one, rather than a modification to the existing text.

As part of the public discussion relative to the potential approval of the need for a new constitution, an open debate has taken place about which issues should or should not be incorporated into this new text.

Among several important themes, the need to regulate the access to clinical data of patients, also called “interoperability,” arises as a major one. Such an issue is linked to the rights to life, to health and privacy protection, individual honor and personal data and property, which are currently established as constitutional guarantees by Article 19 of the current Constitution. Further, the legal framework dealing with this issue is currently mainly found in Law No. 20,584, which regulates the Rights and Duties of individuals in connection with actions associated to their health care, and in Law No. 19,628 (on the protection of the privacy of individuals).

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lady justice.

When Health Advice Is Hard to Come by, BIPOC Suffer the Consequences

By Claudia E. Haupt

The COVID-19 pandemic has highlighted the tradeoffs at stake for Black, Indigenous, and people of color (BIPOC) seeking reliable health advice.

While there are legal safeguards to ensure reliable health advice within the confines of the doctor-patient relationship, outside of that relationship, the First Amendment protects bad advice just as much as good advice.

Courts continue to interpret the First Amendment in an expanding, deregulatory manner and the health context is no exception. For example, one novel judicial interpretation challenges previously accepted applications of the police power in furthering public health. In a forthcoming article, “Public Health Originalism and the First Amendment,” my colleague Wendy Parmet and I explore some of the dangers associated with this deregulatory approach.

Overall, the beneficiaries of these recent developments tend to be powerful speakers. The costs have largely fallen on women, as seen for example in NIFLA v. Becerra, and those who lack access to reliable medical advice, who are disproportionately BIPOC. Current First Amendment doctrine thus has the dangerous potential to further exacerbate existing racial disparities in health.

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Santiago, Chile - Crosswalk in long-exposure.

Chile’s New Constitution, the Right to Health, and Health System Reforms

By Marco Antonio Nuñez

During these months of the COVID-19 pandemic in Chile, the need to align the constitutional process with long-postponed structural reforms to the health system has become evident among public health experts.

Capitalizing on this moment might avoid the possibility of a constitutional right to health becoming a dead letter or being reduced only to the prosecution of particular cases, postponing again the aspirations of the majority of Chileans.

Although the Chilean Constitution promulgated under the dictatorship in 1980 and subsequently reformed in several of its chapters recognizes “The right to the protection of health,” it has been tainted by authoritarianism from its origin, and promotes a subsidiary role of the state in health.

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gavel and stethoscope on white background

The Right to Health in the Upcoming Constitutional Debate in Chile

By Veronica Vargas

At this unprecedented COVID moment, health has been revealed as one of our most precious possessions and protecting it has become imperative. The right to health was articulated by the WHO in the Declaration of Alma-Ata of 1978. The upcoming constitutional debate in Chile is an opportunity to re-examine this concept.

The Chilean constitution specifies the right to “free and egalitarian access” to health care. Simultaneously, the constitution guarantees that “each person has the right to choose the health system they wish to join, either public or private.”

These provisions have championed a prospering private health sector, with corporate clinics and a private insurance system that represents almost half of total health spending.

However, this private sector serves less than 20 percent of the population. Nearly 80 percent of the population utilizes public sector insurance. Although the public sector has been expanding its coverage of health services, and health indicators for those with public insurance have been improving, the public sector is chronically underfunded. Public sector health care spending represents only 4% of the GDP.

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Santiago, Chile.

Pragmatism and the Chilean Constitutional Moment

By Sebastián Soto

Chile is heading into a constitutional change.

After 40 years, the Chilean 1980 Constitution, enacted under Pinochet’s rule, but subsequently amended over fifty times, will probably be replaced. On October 25th, a referendum will decide whether or not to call a constitutional convention to change the Constitution.

If the referendum passes, in April 2021 the convention will be called and will have nine months (extendable for three more, if needed) to write a new constitution. If the convention reaches an agreement on a new constitution by 2/3 of its members, a new referendum to approve it will be called during the first semester of 2022.

Social rights are expected to be one of the most contested topics discussed during the process.

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Political Map of South American Continent.

Regional Insights for Constitutionalizing the Right to Health in Chile

By Alicia Ely Yamin                                                    

Chile is one of the few countries in Latin America that has not amended its constitution post-dictatorship. That is set to change on October 25th when the country will hold a plebiscite on constitutional reform.

Any new Chilean Constitution may well follow the path of constitutional reform elsewhere in the region. These reforms, which occurred in the late 1980s and 1990s, and more recently in Mexico, expanded social rights through expanding enumerations and/or incorporation of international human rights law into the constitutional text through “constitutional blocs” (bloques de constiucionalidad).

In situating what is at stake, it is important to recall that the evolution of health rights in Latin America is closely linked to contestation over boundaries between private morality and public policy, between individual and social responsibility, and between the role of the state and markets.

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Santiago, Chile.

The Democratic Case for Social Rights in Chile’s Constitutional Moment

By Koldo Casla

We live an era of nationalistic, angry, and xenophobic challenges to human rights, a time in which the “will of the people” is maliciously presented as contrary to human rights. We have seen human rights backlashes consistent with this instrumentalization of the so-called popular will in India, Hungary, Poland, Turkey, the Philippines, the U.S., the U.K. — the list, sadly, could go on and on.

Chile, however, presents a test case for the opposite, an opportunity to refresh the democratic case for social rights, not due to natural or international law, but because human rights is what people demand.

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Madison, Wisconsin / USA - April 24, 2020: Demonstrators hold flags and signs at an anti lockdown rally on the steps of the Wisconsin State capitol. State Street is in the background.

COVID-19 Policies and Constitutional Violations

By Daniel Aaron

The past few weeks have seen protests against stay-at-home orders across the country. As protesters clamor for their freedom to leave home and conduct business, a constitutional battleground emerges over the novel coronavirus.

There is a strong argument that the Constitution has been infringed during the COVID-19 pandemic. But these infringements, I will argue, have more to do with the (lack of) federal response to the pandemic than curtailed rights to move, travel, and do business.

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