Introduction

• Author: Rodolfo Gutiérrez Silva
• Pages: 17-27

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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 inuence 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. is 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

inuencing 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 pol-

icies3. 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.

1 According to the OECD (2015), in Colombia, insurance coverage has risen rapidly from 23.5 % of the

population in 1993 to 96.6 % in 2014 while aliation increased most rapidly in the poorest quintiles

from 4.3 % in 1993 to 89.3 % in 2013 and in rural areas from 6.6 % in 1993 to 92.6 % in 2013.

2 According to Gloppen (2005) litigation processes may also inuence Social Policy formation in more

indirect ways too, through stimulating social mobilisation around social rights issues, creating awa-

reness and media attention, feeding advocacy, bringing social rights issues into social policy dis

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course and framing marginalised people´s grievances in terms of social rights violations.

3 Colombia is a country where patients tend to go rst to the Judge rather than the doctor because

providers tend to deny health services. After some time, the Constitutional Court orders structural

remedies to the government in order to transform and (re)formulate social policies.