The Justiciability of the Right to Health Care in Colombia

• Author: Rodolfo Gutiérrez Silva
• Pages: 108-123

 The Justiciability of the Right to Health in Colombia

Introduction

Although there are still huge inequalities in the right to health, without a

doubt Colombia has made some progress in the protection of this right

in comparison to the 1970s. For example, some indicators of protection, cov-

erage1 and fullment of this right have improved. Health expenditures have

also increased a bit regarding resource allocation. is development has been

possible in part thanks to the new role that judges have played as guardians of

the constitution in the guarantee of the constitutional principles and values.

erefore, it is important to highlight the crucial role that judicial activism

has played in triggering this improvement. However, despite this progress,

the number of writs of protection have massively increased in recent years,

this might initially suggest that there is a problem with the public policies

designed by States. e objective of this chapter is to evaluate the challenges

and opportunities of the State in the justiciability2 of the right to health in the

Colombian context. is research is of vital importance since it is necessary to

continue working on the identication of the dierent factors that are aecting

not only the provision of health services but also the public institutions created

to safeguard it. It is also urgent, particularly because despite dierent advances

in the area of health, thousands of people in Colombia are currently being

denied access. e present study also seeks to generate a modest contribution

to the academy and public institutions, particularly, in the identication of

future challenges for the improvement of the provision of health services and

the justiciability of fundamental rights. is paper develops a documentary

and comparative research with the analysis of literature over the last ten years.

In this paper, I will rst try to provide a picture of the context of the judiciali-

sation of the right to health in Colombia, particularly, highlighting the massive

increase in numbers of writs of protection. en, I will describe the problem

1 According to the OEC D (2015) insurance coverage has risen rapidly from 23.5 % of the po-

pulation 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 When we speak of justiciability we are essentially speaking about the possibility that citi-

zens have to demand their rights before a court through various mechanisms or technical

procedural instruments. According to Glassman et al. (2017), On a most basic level, right

to health litigation arises when an individual does not have access to a specic treatment,

pharmaceutical or medical device  here, as part of universal coverage.



Rodolfo Gutiérrez Silva

that Courts are currently facing due to this increase, and then thirdly, I will

evaluate the role of the Superintendence of Health in fullling its obligations

under international law. Finally, I will attempt to evaluate the dierent chal-

lenges and opportunities of the Colombian State in the judicialisation of the

right to health. is paper argues that the Colombian government should

design and agree on a strategy for the short, medium and long term for the

protection of the right to health by reducing the high levels of corruption;

this implies a complete restructuring of the Superintendence of Health. e

Colombian State must promote a serious debate with the participation of its

society about this topic.

1 General Context of the Justiciability of the Right

to Health in Colombia

e high levels of judicialisation are a reection of the fact that the Colombian

State is not fullling its obligations of protection of human rights at the consti-

tutional level and under international law. It might also suggest that there is a

problem with the current public policies in the eld of health

3

that is causing a

combination of deep and persistent failures in the system (Rodríguez-Garavito,

2012). erefore, in the end, the rights of the people are massively violated.

Simply stated, citizens resort to the Courts because they do not trust pub-

lic institutions and they do not have another eective mechanism to protect

their rights. Many public institutions lack the capacity and the mechanism for

complaints does not guarantee the accessibility of health care. Right holders

believe that judges have the power to order public or private institutions the

delivery of treatments, services and benets that could guarantee them a decent

standard of life and a vital minimum with human dignity. us, although the

constitution of 1991 was able to recognise social rights, unfortunately, market

principles and forces led to the fragmentation of the constitution.

Not only did the fragmentation of the constitution become a barrier with

which to deny access to health but subsequently, in 1993, the new global cul-

ture of marketisation in health was integrated into the public policies and the

3 This might also be the case in Argentina according to Bazan (2017)