The guarantee of independence in the regulation of the Colombian health system

Resumen

Regulation is mainly a set of commands and actions to influence the behavior of a certain regulated sector, and the corrective measures taken to remedy their breach. This administrative function is closely related with the independence of the regulator from the government, the other branches of power and the regulated agents, because its managerial, technical, financial, and decision-making capacity depend on it. Thus, independence constitutes a guarantee to empower the organizations in charge of regulating and supervising the health sector and give them legitimacy and credibility. Lastly, it gives them effectiveness in their quasi-jurisdictional, quasi-legislative and executive functions. The objective of the research is to establish why independence is important and necessary for the effectiveness of the administrative procedures and organizations that compose the function of regulation in the health sector of Colombia. Specifically, to correct the regulatory failures of the system and particularly the systematic lack of effectiveness of the administrative authorities to protect the right to health and to guarantee the access to health care. There are two main hypotheses developed in the first and second chapters, respectively. Firstly, the function of regulation is advocated as a tool to protect and guarantee the access and enjoyment of the right to health, the health care and the social justice derived from equality and the redistribution of the opportunity to achieve health. The analysis begins from a theoretical perspective of the administrative and human rights law, considering the fundamental nature of the right to health object of protection, the technical nature of health and the characteristics of the administrative function. The chapter concludes defining regulation from a human rights perspective and arguments why independence is necessary to perform this function. The second hypothesis affirms that there are certain material limits in health regulation that determine the structure and content of the procedures and organizations responsible of regulating the health sector. These are juridical and technical limits that constrain the regulator to be independent, which constitutes an imperative and natural consequence of them. These limitations include democratic deliberation, which is a necessary element to legitimate and give credibility to the regulatory activity. The last hypothesis focuses on effectiveness and corresponds to the third and fourth chapters. Both intend to show that regulator’s independence and its corresponding accountability determine the effectiveness of the administrative protection of the right to health, which is part of the regulatory function. The preceding hypotheses are tested in the last chapter through the analysis of the regime of independence and accountability of the Colombian health system. It concludes that there is a lack of formal or legal independence of those organizations and some gain of de facto independence of the quasi-legislative function of regulation concerning the Plan of Benefit procedure of configuration and exclusion. However, the supervisor (the National Health Superintendence) is not independent because it lacks managerial, financial, and organizational capability to perform regulation through adjudication. Particularly, it is not independent to perform its jurisdictional attributions, which diminishes the de facto independence gain. Simultaneously, the judiciary is the main accounter of the health regulator, however, its role has grown excessively into a co-management and co-regulation of the system. Consequently, the lack of independence and the excessive accountability are equally nonfunctional to effectiveness of the administrative protection of the right and the right itself. There are various reasons to choose Colombia as the case study. It is a particular case of litigation in the world, an example of a distorted accountability through the judicialization of regulation and an exercise of democratic deliberation in and my home country. The case serves also to demonstrate the hypotheses proposed. Lastly, the methodology applied the theoretical analysis of the framework of the constitutional and administrative doctrine and the norms about the structure and content of the regulatory competence. Also, it used empirical elements, such as jurisprudential analysis, observational, longitudinal, and prospective analysis and a lege lata normative analysis through the indexes of independence and accountability. Finally, an exploratory assessment was applied through the analysis of the documents, meeting minutes, deliberations and technical assessments related to the procedure of exclusions of the health technologies to evaluate the de facto independence in practice.