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 Oska Paul explores the complexities of Colombia’s health system with regards to the tutela, a once praised initiative that sees Colombians battling jurisdiction in order to access healthcare.

Tutela

The Colombian health system has emerged within a very specific juridical context. While Colombia offers health as a fundamental right, it is only accessible through a complex, poorly regulated system. Numerous ailing Colombians must become political subjects, fighting for their right to health in the court of law through the tutela action in order to access the healthcare they require. Required to engage with a host of agents such as lawyers, judges, experts, officials and insurers – all of whom shuffle between the home, the courtroom, the hospital and public offices – these subjects are juridical patients, who seek vitality in the thin lines between state, law and market.

After a long period of violence and repression dating from the mid-1940s, in 1991 (as part of the new Constitution) the Colombian Constitutional Court (CCC) introduced the tutela as an action to be presented before any judge for the immediate protection of a fundamental human right that is violated or threatened. In Article 86, the CCC’s jurisprudence developed the tutela, expanding the powers of the courts to make decisions in human rights cases, eliminating standing constraints and procedural limitations that fetter other systems. On the surface this was one of the most progressive jurisdictions in the world with respect to economic, social and cultural rights. Following the atrocities of civil war the tutela action was particularly significant for the development of a new ‘aspirational constitutionalism’, in which Colombians could claim their constitutional rights through court action in the form of dialogic judicial activism.

Perhaps unsurprisingly the introduction of the tutela produced an enormous amount of private litigation in Colombia that continues to grow today. Between 1999 & 2010 there were 2,725,361 tutela decisions alone, of which a striking proportion are directed at the right-to-health. By 2008, the number of cases threatened to collapse Colombia’s entire justice administration system as it reached its peak of 142,952 tutela actions, 41.5% of which were rights to health claims.

It does seem surprising however, given Colombia’s history, that rights to health claims should characterise national litigation. The CCC are a significant factor responsible for these high numbers. In failing to address the serious structural issues of its healthcare mandate, they have forced patients to turn to judicial action as the only effective means of accessing healthcare. As such, the initially innovative tutela has recast health as a process of judicialization, whereby the courtroom is the battlefield for the veridication/falsification of the right to health, with a one-case-at-a-time policy. Caught in this interstitial space the subject is not controlled by either the state or the market, but is forced to negotiate their constraints and possibilities using jurisprudence. The regulatory frailties of the Colombian health system and the ambiguous obligations the CCC gave profit-driven health providers and insurers have over-determined the health outcomes of patients as a judicial matter.

Many of these problems stem from Law 100, which under President Gaviria’s administration opened the way for private health insurance companies, known as Entidades Promotoras de Salud (EPS), to mediate between individuals, the government, and healthcare providers. The POS and POS-S obligatory health plans were created for contributory and subsidized regimes respectively. Whilst being driven by neoliberal ideology, whereby the market is the best mechanism to meet human needs, Law 100, unlike most private insurance schemes, set up a hybrid model in which private insurance companies did not set the capitation rates or content of benefits packages, nor control whom to insure.

This led to extreme ambiguity, with insurance companies making use of tutela actions themselves, since according to the Court ruling, health service denial was due to a systemic failure, rather than a fault on the part of insurance companies. Treatments or procedures claimed through tutela action and ordered by the constitutional judge had to be paid by the State. Thus private insurance companies frequently implemented a denial policy for health care procedures, forcing users to take a tutela action so that the insurance company could charge the State for the services provided.

On top of this, the financing scheme for the health insurance regimes, based upon payroll taxes, did not address underlying trends toward labour flexibilization. This led to an increase of pay-roll taxes in the formal sector for those in the contributory regime, encouraging more people to transfer to the informal sector and the POS-S. The contradictions inherent within Law 100 over time produced fault lines which, together with failures of regulation, led to the crisis in the system.

By 2008, with rocketing levels of health litigation, the CCC issued its Decision T760/08 that stated that the system was incapable of regulating itself. It was the first decision to adopt structural litigation guidelines to specifically order the government to address the major problems in the healthcare system, after both the DeJuSticia and the Attorney’s General Office admitted that judicial recourse had become ‘the only escape valve’ for a crippled administration. The court ordered the government to revise the scheduled list of benefits, both to include those that were consistently ordered by courts through tutelas, and to eliminate persistent disparities between the contributive and the subsidized regimes. In addition, the court asked the government to design non-judicial mechanisms to resolve disputes between patients and healthcare providers, and create effective mechanisms to reduce both the promotion of litigation and the denial of services and information by the EPS.

Yet in 2014, the 104 ruling by the CCC noted a serious a lack of surveillance and reporting mechanisms on Court orders. As a result, any progress in defining insurance company obligations within the health system remains unfinished. The ways and means of right to health litigation in Colombia remain an inconsistent experiential, political, economic field. T760 failed to effectively address the structural defects of Law 100, which continues to align the market principles of healthcare delivery with a juridical subject of rights. In Colombia, where the rational choice-making economic subject is also the subject of legal rights, the right to life is claimed in between the clinic, the court, and the marketplace. Patients must continue to use the tutela as a way to flex their political status with the right to health.

In this judicialization of health we are witnessing a struggle over the utility and purpose of the Colombian government for multiple individual, private and public entities. In his 1979 Lecture series Michel Foucault’s reflections on biopolitics and neoliberalism addresses the form and reach of these novel medico-socio-legal realities. What determines “good government” he suggests, is no longer simply government that functions according to justice but according to the market. To an extent Foucault’s reflections are useful for theorizing the way the market, through EPS bodies, constitutes a site of veridiction-falsification for governmental practice. Yet the juridical subject in Colombia’s late-liberal political economy holds a novel strength in the imagination, desires and contingency of the country’s aspirational constitutionalism. Law 100, and the tutela action continue to facilitate the juridical patient who subsists in the interstices between the state, the law and the biomedical market. Health outcomes are often determined by the kinds of marketized–juridical subjects patients are able to become through appeals to the judiciary, government, and research and health industries. The Colombian example is thus a more complex bio-politics than Foucault describes. The introduction of “more subtle, more rational mechanisms [like] insurance, individual and collective savings, safety measures” exist, but they do so not within a context of traditional neoliberal rationalism, but in a strange juridical-economic-political dialogue that mutates for specifics, rather than exerting itself over the entire population.

The problem that is emerging in this country of extreme social inequity, where certain groups are extremely well-organized and adept at engaging with legal structures, and other individuals remain unorganised, atomized and ambiguous political subjects, is that this dialogic judicial activism that the tutela action affirms, is very rarely a dialogue held on level ground.

Fundamental concerns have been raised with respect to the equity impacts of judicial interventions of conceding treatments that could not be universalized. In effect, Colombian courts have been awarding health benefits based on the morally irrelevant criterion of who has access to justice. Between 2006 and 2008, Bogotá (24.9%), Antioquia (20.1%), and Valle (10.1%), the three wealthiest departments of the country, represented more than 50% of the tutelas. By contrast, Vaupés, Guainía, Vichada and Chocó, which are among the poorest departments, did not together total even 1% of the tutelas during that period.

The progressive tutela action, that asserts a strong dialogic judicial activism, has created novel and often constrained subject positions. Struggling with the tensions that a hybrid government of social protection and market expansion brings, Colombia’s public institutions have created novel political patients who, in trying to avoid being stratified out of existence, must participate judicially to access their right to health. It is at this intersection between medical imperative, political right and market reasoning that Colombia’s ailing subjects fight, flex and suffer not only in the hospital but in the home, the courtrooms and private offices.