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FLEURY, S. et al. Right to health in Latin America: beyond universalization.

January 2013

Authors:

Sonia Fleury

Oswaldo Cruz Foundation

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SUB-BRAZILIAN POLICY FORMATION PROCESS AND DECISION-MAKING STRUCTURE

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financing FOR

development

ISSN 1564-4197

SERIES

Right to health in Latin America:

beyond universalization

Sonia Fleury

Mariana Faria

Juanita Durán

Hernán Sandoval

Pablo Yanes

Víctor Penchaszadeh

Víctor Abramovich

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

Right to health in Latin America:

beyond universalization

Sonia Fleury

Mariana Faria

Juanita Durán

Hernán Sandoval

Pablo Yanes

Víctor Penchaszadeh

Víctor Abramovich

249

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

This document has been prepared by Sonia Fleury, consultant of the Financing for Development Division of

ECLAC, and Mariana Faria, Juanita Durán, Hernán Sandoval, Pablo Yanes, Víctor Penchaszadeh and Víctor

Abramovich, in the framework of the activities of the project “Right to health in Latin America: beyond

universalization” executed by ECLAC jointly with The Rockefeller Foundation (RFK/13/001).

The views expressed in this document, which has been reproduced without formal editing, are those of the

authors and do not necessarily reflect the views of the Organization.

United Nations Publication

ISSN 1564-4197

LC/L.3647

ORIGINAL: ENGLISH

Printed at United Nations, Santiago, Chile

Member States and their governmental institutions may reproduce this work without prior authorization, but are requested to

mention the source and inform the United Nations of such reproduction.

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

Contents

Introduction............................................................................................................................................... 5

I. Right to health: are normative principles sufficient? ................................................................. 7

II. Rights and benefits: synergies and stresses................................................................................ 11

A. Widespread constitutional commitment................................................................................. 11

B. Judicialization ........................................................................................................................ 11

III. Different paths to UHC: distinct patterns of citizenship .......................................................... 17

A. Universal health systems in a context of austerity ................................................................. 18

B. Reducing the gap among insurance plans .............................................................................. 22

C. Targeted programs in segmented systems.............................................................................. 24

IV. Conclusions: towards a community of citizens .......................................................................... 27

Bibliography............................................................................................................................................ 29

Annex ...................................................................................................................................................... 33

Financing for Development Series: issues published ........................................................................... 39

Tables

TABLE 1 NUMBER OF HEALTH CASES PER CAPITA..................................................................13

TABLE 2 SUB-BRAZILIAN POLICY FORMATION PROCESS

AND DECISION-MAKING STRUCTURE.........................................................................20

TABLE A.1 HEALTH EXPENDITURE, POPULATION COVERAGE

AND CONSTITUTIONAL AND LEGAL FRAMEWORK ................................................ 34

Boxes

BOX 1 USE OF GENETIC IDENTIFICATION TO REDRESS

HUMAN RIGHTS VIOLATIONS IN ARGENTINA ............................................................8

BOX 2 THE BRAZILIAN EXPERIENCE OF PATENT RELEASE

FOR ANTIRETROVIRAL DRUGS.....................................................................................12

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

BOX 3 HEALTH LITIGATION: THE ROLE OF THE COURT IN COLOMBIA ......................... 14

BOX 4 GUARANTEES: THE AUGE PLAN IN CHILE .................................................................23

BOX 5 THE EX POST CONSENSUS IN FAVOUR OF A UNIVERSAL

NON-CONTRIBUTIVE PENSION IN MEXICO CITY......................................................25

BOX 6 RIGHT TO HEALTH AS PART OF THE SUMAK SAWSAY ..........................................26

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

Introduction

Recently, Latin American countries have had to face the challenges of improving social inclusio n and

economic redistribution while consolidating democratic institutions after long periods of authoritarian

regimes in many of them. Addressing pressure for social inclusion was all the more difficult, since these

societies are characterized by some of the worst income disparities in the world and high degrees of

labor market informality.

After the 70’s, the massive explosion of social demands in the transition to democracy

transformed the region into a social laboratory aiming to promote social inclusion. So, many different

projects were designed and implemented in order to prevail over the main features of the stratified

(Mesa-Lago, 1978) and segregated (Filgueira C.; Filgueira F., 2002) Latin -American pattern of social

policies. This has been the recent challenge for these societies, requiring the development of new values,

institutions and policy designs. However, the movement to universalize social rights took off in a

juncture of macroeconomic adjustment and pressure to reduce public spending, engendering new social

policies designs with the double aim of universalizing coverage and targeting the poor. The main

dilemma of public policy decision-makers has been how to increase pluralism and competition without

increasing inequality in the system of social protection.

The reform efforts —in health care and in social security systems— were part of the evolving

context brought about by democratization of the region’s political systems, the modernization of

productive models in a globalized economy, and the redesign of the state’s role. On one hand, the

democratic governance in the Region depends on the countries’ capacity for integrating the poor

population into the political community, building up active citizenship and eliminating discriminatory

barriers in the market. On the other hand, the widespread dissemination of the human rights principles

and legal instruments in recent years may contribute to enforce the governments’ commitment to

universalize the right to health.

In this article we discuss the right to health considering its judicial or enforcement component as

well as the health systems responsible for transforming rights-in-principle into rights-in-practice. We

highlight the synergies and stressors between these two dimensions of the right to health —juridical and

institutional—, by examining some experiences of health care reform in Latin American countries.

These experiences used different approaches and mechanisms in order to overcome exclusion and

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

achieve the coverage of the poorest groups in the population and/or to achieve an egalitarian status for

all citizens. The differences are based in prevalent values in each society and governmental orientations,

and expressed in different strategies and arrangements regarding entitlement, financing, o rganizing and

services’ deliver. Although we’ve been assisting an expansion of health coverage in the region, so far

this dynamics does not seem to thoroughly fulfill the universal right to health, and in this way overcome

the prevalence of beneficiaries’ segmentation in the region.

We present different trends in this general movement towards universal health coverage:

(a) universal health care systems with constrained by the shortage of economic resources; (b) systems

with stratified health coverage by designs; (c) targeted programs in segmented systems; and (d) newer

multicultural approaches to health care.

Beyond the general tendency towards universalization we highlight the importance of

surmounting the political and economic constraints that can jeopardize the leveler treatment inherent to

the right to health as a human right, denying access and services’ utilization. This way, reformed health

care systems may increase coverage, but not citizenship.

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

I. Right to health: are normative principles

sufficient?

Health is a fundamental human right affirmed by the United Nations and recognized in regional treaties

and numerous national constitutions. WHO Constitution (Constitution of the World Health Organization,

1946) states that “the enjoyment of the highest attainable standard of health is one of the fundamental

rights of every human being...”.

According to the United Nations Office of the High Commissioner for Human Rights “human

rights are rights inherent to all human beings (…). We are all equally entitled to our human rights

without discrimination. These rights are all interrelated, interdependent and* indivisible. (…)

International human rights law lays down obligations of Governments to act in certain ways or to

refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of

individuals or groups. They are universal and inalienable. The principle of universality of human rights

is the cornerstone of international human rights law”.

Consequently, civil and political rights denial is a serious threat to health, as illustrated not only

by examples of genocide and torture, but also as a consequence of other regimes in which particular

groups have been systematically disenfranchised (Braveman, 2010). This way, genetic was frequently

associated with politics since it gave the pseudo scientific basis for practices of group segregation,

massive sterilization and genocide. However, one of the outstanding uses of health knowledge in the

defense of civil rights has happened in the region with the use of genetic identification in of abducted

children in Argentina, restoring their right to live with their true identity.

The UN Committee of Economic, Social and Cultural Rights has established that Article 12 of the

Pact defines fundamental obligations to ensure, at the very least, the satisfaction of essential levels of the

right to health, guaranteeing: (a) the right of access to health centers’, goods and services on a non-

discriminatory basis, especially for vulnerable or marginalized groups; (b) access to essential nutrition so

that nobody starves; (c) access to a home, a shelter and basic sanitary conditions, including an adequate

supply to clean potable water; (d) provision of essential drugs, according to the periodic definitions

present on WHO's Programme of Action on Essential Drugs; (e) an equitable distribution of all health

facilities, goods and services; and, (f) the adoption and implementation of a national strategy and

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

implementation of a public health plan based on epidemiological evidence that face the health issues of

the entire population (UN, 2000; Parra Vera, 2006).

BOX 1

USE OF GENETIC IDENTIFICATION TO REDRESS HUMAN RIGHTS VIOLATIONS IN ARGENTINA

During the dictatorship that ruled Argentina between 1976 and 1983 the military engaged in savage repression and

egregious violations of human rights, including the forced disappearance of 30,000 political dissidents. The disappeared

included babies and small children abducted with their parents, as well as several hundred pregnant women. Hundreds of

these babies were appropriated by individuals linked to the military, who raised them under forged identity

(Penchaszadeh, 1992). After the return of democracy in 1984, the search for these children began and procedures were

implemented for proper legal, ethical and psychological handling as they were localized and identified. A National Genetic

Database was created by law to analyze and store genetic markers of putative grandparents and other relatives (most

parents were dead), to be matched with genetic markers of children and young adults as they were localized

(Penchaszadeh, 1997). By law, identified persons were informed of their true identity and family ancestry, put in touch

with their biological families and their true legal identity restored. When these persons were still minors, DNA testing by

court order was mandatory. As they became adults, the Supreme Court, while accepting that a competent adult could

decline submitting to a blood test, it ruled that DNA could legally be obtained and tested, even without consent, non-

invasively (Penchaszadeh, 2011).

Over a span of 28 years (1984-2012) 107 individuals were identified at ages that ranged from 6 years to 36 years old,

the latest thus far in 2012 (Penchaszadeh, 2012). The factors that made these developments possible were the actions of

human rights organizations, the political will of decision makers and the advances in DNA identification technology. The

latter, coupled with the development of a national genetic database to identify disappeared persons, was a key factor to

the success of this program, which illustrates the importance of public investment in science and technology and its

application to address human rights (Doretti; Fondebrider, 2012).

Source: Own elaboration.

These international normative principles when embodied in national constitutional support are

indispensable to guarantee the role of the judiciary to assure that any citizen can claim the right to health

in a universal and no-discriminatory basis. Nevertheless, the right can only become effective through

social policies, encompassing the establishment of proper institutions in charge of the health system

functions of stewardship including entitlement, design, funding, financing, provision and regulation.

Therefore, the constitutional framework is indispensable but not sufficient to assure the right to health.

Normative principles must be translated into institutions, norms and resources.

The right to health can be analyzed according to human rights normative framework selecting

some key principles: equity, equality, no-discrimination and respect for cultural differences. However,

the selected dimensions have a social justice component that can bring divergence regarding its

operational conversion (Backman, Hunt, Khosla, Jaramillo-Strouss, Fikre, Rumble, Pevalin, Páez,

Pineda, Frisancho, Tarco, Motlagh, Farcasanu, Vladescu, 2008). For example, equity can be translated

either as equal treatment in the same circumstances (horizontal equity) or as treating differently

according the level of needs (vertical equity). Social equality means equal rights under the law and equal

access to social goods and services, what requires the absence of any kind of discrimination that can

reproduces or enforces unjustifiably opportunities and treatments. However, singularities must be taken

into account since the individual and groups’ needs are embedded into social and cultural roots.

The challenge is how to transform rights in principle into rights in practices, particularly in

contexts of prevailing economic austerity and elitist political traditions. The framework for analyzing

country cases must not to be limited to jurisdictional and normative perspective, but must to focus on the

institutional underpinnings as well. The concept of citizenship offers a comprehensive perspective,

which connects normative social justice with the institutional basis of universal health coverage.

Moreover, it provides an analytical framework that permits to differentiate among health reforms

designs and implementation processes, identifying whether the coverage extension is correlated or not to

the citizenship expansion.

Citizenship comprises several dimensions or components. The civic component of citizenship

supposes the existence of a national political community where the individual is included and shares

with others a system of beliefs and attitudes towards public powers and rules. It also includes the feel ing

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

of belonging to a community and the public responsibilities of each individual as a member of the civil

society towards the political system and the state. As a public dimension of the individual, citizenship

postulates a model of integration and sociability. The legal component of citizenship entitles individuals

to a set of rights and moral or legal obligations. The institutional component is responsible for translating

values such as, equity and equality, into legal norms and social policies (Fleury, 2003).

Citizenship provides a framework for right to health analysis under the principles of equality,

equity and non-discrimination as manifested through health care system institutional features, encircling

design and organizations, financial sources, decision-making processes and public-private relations.

Accordingly, the egalitarian political principle underlying citizenship status provides the criteria to

analyze UHC strategies considering their outcomes in terms of recognition, redistribution and

participation in the community of citizens.

Right to health recognition implies the universal attribution of the same legal status for all

individuals, as well as taking into account singularities and cultural differences among groups.

Redistribution implies fairness in terms of health care access and utilization. This does not mean

ignoring existing disparities in other aspects, but to ensure that none determines all of the others

(Walzer, 1984), neither differentiated the access to health services. Participation is a requirement of an

active citizenship but not involved when universalization is basically translated into consumption.

Regarded as a public value, participation is a way to increase awareness of rights, empower individuals,

increase health knowledge, and exchange information.

However equity may express different moral perspectives. The dominant outlook builds on the

idea that utilization of services should reflect actual need for care, yet a prominent competing view

focuses on the availability of a decent basic minimum of care with a space for health market (Norman,

2013). These different moral perspectives will turn into diverse designs of health care systems give

raises to specific universalization strategies. Thus, the response to the question about what kind of health

care we owe each other in a society is different according to each equity perspective: a fair equality of

opportunities to universal access; universal access to prudentially defined care or access to a decent

minimum of health care (idem).

Even though both are ways to achieve health care universalization, they have dissimilar values

according to citizenship status, because universal coverage does not always imply the same rights to

health. While the fair equality of perspectives is attached to the equalitarian principle of universal

citizenship it can fail to transform rights in law into rights in practice without adequate resources and

political commitment. On the other hand, universal access to prudentially defined care maintains

stratification and exclusion beyond the defined list of what is covered, while the decent minimum is a

targeted policy that is far from a universal legal status.

Adopting both analytical perspectives of citizenship, normative and institutional, allows

combining the legal status with the efficacy of the health care policy. Nevertheless, health goes beyond

access to care and must be considered from the social and economic determinants perspective. The lack

of economic and social rights assurance greatly affects health. In Latin America inequalities in the

distribution of public goods is even worse than the income distribution. For instance, it is the richest

region in the world in terms of freshwater availability per person, and yet across the continent

inequalities in the water supply and sanitation services has led to populations being underserved.

According to the World Bank at a regional level 100 million Latin Americans lack access to adequate

sanitation” (World Bank, 2012).

While authorities and the population are increasing aware of health as human right, neglected

needs such as water and sanitation are hardly translated into the language of rights, which reveals the

mammoth gap between discourse and the practice regarding policies to implement thorough and

trustfully the right to health in the region.

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

II. Rights and benefits: synergies and stresses

A. Widespread constitutional commitment

In the past three decades, Latin America has experienced an intense period of constitutional change, as

nearly all the countries either adopted new texts or introduced profound reforms. A review of the

constitutional reforms shows that a considerable extension of constitutionally recognized rights has

occurred in the region. The movement towards consolidating UHC has spread across the region since the

end of last and the beginning of this century, in spite of the differences that still persist regarding health

expenditure, population coverage and constitutional and legal framework. ( Table 1: Health Expenditure,

Population Coverage and Constitutional and Legal Framework (annex 1).

The recent positive results regarding the right to health expansion are due to a synergic

conjugation of legal protection, bottom-up pressure from civil society organizations, and the

government’s drive and concrete action. One outstanding example of this synergy leading to UHC is

seen in the Brazilian antiretroviral policy. This case highlights the combined effects of civil society

engagement for the right to health and government responsiveness within the framework of a universal

health care system.

B. Judicialization

Even though most Latin American Constitutions are aligned with the philosophy of social

constitutionalism, the prevailing rationale for concrete norms establishing social rights is programmatic.

According to the institutional design of Latin American democracies, the Executive and Legislative

powers are in charge of complying with the majority of the rights’ demands, while the Judiciary plays a

subsidiary role acting when the other powers fail to comply with their duties.

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

BOX 2

THE BRAZILIAN EXPERIENCE OF PATENT RELEASE FOR ANTIRETROVIRAL DRUGS

The lawsuits for the provision of antiretroviral drugs are part of the history of the fight against AIDS in Brazil. Based

mainly on ensuring the right to health, guaranteed by Brazilian law, the claims to the Courts were crucial to enhance

implementation of a policy for universal access. The first lawsuits began in 1996, with Courts deciding in favor of patie nts,

with the main arguments based on Brazil’s Constitution (1988) and the Organic Health Law (8080/90), which recognizes

the right to universal healthcare. Also in 1996, Law 9313 was approved. This law strengthens the existing legal

framework guaranteeing free access to antiretroviral drugs and assertively improved the National AIDS Program’s

structure for purchasing medicines (Ministério da Saúde, 2005).

While it would be an exaggeration to claim that the lawsuits about entitlements to medicine were a dec isive factor

behind the approval of Law 9313/96, it is fair to say that social mobilization and pressure from the legal battles waged by

AIDS-specific-non-governmental organizations (NGOs) helped to shape a favorable environment for the approval of the

law. Significantly, the exercise of the right to social participation, guaranteed by the Organic Health Law (8080/90)

contributed to a more structured and better organized response from the government (Le Loup; Fleury; Camargo;

Larouzé, 2010).

It was also in 1996 that Brazil incorporated the compulsory license into its national legislation. The Doha Declaration

(2001) recognized the right of countries that have signed the TRIPS Agreement (2009) to take measures to protect public

health and the access to medicines through compulsory licenses. The Compulsory License is a permission to use a

patented product without previous authorisation from the patent owner. As a result to the success of the AIDS

programme, and the need to provide free access to antiretroviral drugs, in 2007 the Brazilian government decreed its first

compulsory license, that of antiretroviral Efavirenz (Hoirisch, 2010). The national production of the medicine began in

2009. This Compulsory License led to an approximately 72% reduction in the price of the antiretroviral. This tool can and

must be used to guarantee access for the population to high-cost medicines that are strategic to health systems

objectives if negotiations with transnational pharmaceutical labs for price reduction come to an impasse in an

environment of limited resources.

Source: Own elaboration.

The presence of the right to health in the reformed Constitutions is important to reinforce the

government’s commitment as well as rallying social mobilization, but does not necessarily determine the

role of Courts. While the role of the judicial system in the enforcement of the right to health increased in

many countries after the Constitutional reforms, in some cases the legal decisions were based on

adherence of international treaties on human rights (as in Argentina and Costa Rica) and in others to

specific constitutional statements of health as citizens’ right and the state’s duty (such as in Brazil and

Colombia). Accordingly, more important than the legal instrument is the autonomy of the Justice in the

intergovernmental arrangement.

Most of the legal instruments aim to guarantee that fundamental rights have concrete effects

instead of being simply rhetorical. To actively protect those rights, forms of direct judicial protection

were created or reinforced, such as the writ for the legal protection of fundamental rights. In this

scenario, the existence of judicial mechanisms in conjunction with the lack of effective realization of

citizenship rights has led to a new kind of judicial activism, prompting ordinary citizens to press their

claims and secure their rights through the courts. A substantial growth in the number of health rights

cases focusing on issues such as access to health services and essential medicines is observed in Lati n

American countries. This health rights litigation is referred to as the judicialization of health. Analyzing

the intensity of judicialization across countries, as well as the influence of the court’s decision, it is

possible to identify three countries with the highest policy impact in the region: Colombia, Costa Rica

and Brazil.

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

TABLE 1

NUMBER OF HEALTH RIGHTS CASES PER CAPITA

(Tentative figures)

Country

Lawsuits

(annual figures)

Populatio

(millions)

Health litigation per capita

(lawsuits per 1,000,000)

Colombia

150 00

45.6

3 289

Brazil

40 000

193.7

406

Costa Rica

500

4.6

109

Source: In Yammin and Gloppen Litigating health rights: can courts bring more justice to health 2011. (adapted by the authors).

Even though this phenomenon is increasingly observed in contemporary Latin American

countries, considerable diversity of health judicialization can be found across countries. This process

depends on an array of factors such as access and utilization of health services; access to courts;

existence of contractual definitions of benefits; citizens’ awareness of their rights and the existence of

consumers’ organizations; the role of pharmaceutical industry; as well as the creation of dialogic

channels for consensus building among stakeholders.

Regarding the legal basis for litigation, in the Brazilian case the right to health is universally

assured by the Constitution of 1988; in Costa Rica, although health rights are not in the Constitution, the

1989 constitutional amendment created a new Constitutional court —Sala IV—granting the opportunity

for successful health rights litigation; and, Colombia guaranteed right to health as a universal un-

renounceable right in the 1991 Constitution, while the Law 100 of 1993 established an health insurance

system. In the Brazilian case the growth of litigation is credited to the universalization of the right to

health in the public health system and civil society support organizations whereas in Colombia and Costa

Rica the phenomenon is rather ascribed to institutional rules than to the civil society mobilization. Thus,

the role of Supreme Court in adopting a broad definition of standing as well as eliminating many of the

barriers to access justice is considered the main explanatory factor (Wilson, 2009).

Although the three countries deliver health care through a mixture of private and public health

provision, Costa Rica and Brazil have unified public health systems, while Colombia has managed

competition between public and private health-care in a health insurance scheme. In Colombia and Costa

Rica there is a standardized benefits package, which circumscribes what is covered. In contrast, in Brazil

this doesn’t exist, since the SUS1is responsible for providing integral health care. In all of the three

countries the legal claims are prominently based on the individual cases, in which the decisions refer to

individual’s right to access health care services and medicines. Since individual’s access to justice is

unequally distributed and highly conditioned by education and economic factors, litigation reinforces or

even deepens unequal access to health resources (Yamin; Gloppen, 2011).

By reinterpreting existing law, or more effectively applying and enforcing existing rights, courts

have a significant effect on policy choices and governance. These effects can be positive not only from

an individual perspective, bur also collectively since the governmental authorities are compelled to be

accountable for their decisions. However, in many cases courts decisions have had negative and

problematic effects on health public policies, due to the impact on the public budget, which generates

inequality in the health care system. Moreover, the right to health cannot be reduced to treatments for

complex diseases and the use of costly medicines, at the expense of the implementation of mechanisms

for health promotion and diseases prevention.

An underlying consideration is medicalization, a process that de-politicizes health problems, even

those with complex social causes, by framing them as objectively resolvable thorough the intervention of

doctors and the medical system (Conrad, 1992). As we complete the first decade of the twenty-first

century it is clear that the pharmaceutical industry is playing an increasing important role in the process

1Sistema Único de Saúde.

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

of placing aspects of normal life that used to be managed without medical intervention, into the medical

care paradigm.

The role of the Court in Colombia highlights not only the problems of an individual approach to

judicial protection and its unequal bias in favor of upper and middle class demands, but also the role of

the Judiciary in promoting equity by reducing gaps in benefits packages due to different entitlemen ts

based on income differences.

BOX 3

HEALTH LITIGATION: THE ROLE OF THE COURT IN COLOMBIA

The legal and institutional transformation of the protection of the right to health in Colombia generated tension. On the

one hand, the 1991 Constitution created a bill of rights and provided an informal and expeditious mechanism for their

protection called ‘tutela’. The right to health was established as a universal non-renounceable right and with a public

service in charge of the State. On the other hand, Law 100 of 1993 provided a universal insurance system based on a

model of regulated competence, grounded in the approach promoted by the Inter -American Development Bank in the

region (López, 2008; Lamprea, 2001).

The new health insurance system rather than developing the right to health, focused on the financial and

administrative arrangements to supply services. It established two regimes for affiliation. For those with economic

capacity Law 100 created the Contributory Regime, in which a monthly contribution based in the income (‘cotización’)

gives entitlement to a package of services determined by the government (‘Plan Obligatorio de Salud’). Additionally, the

Subsidized Regime was created for those without economic capacity, in which government, partially with solidarity

resources, finances the premium.

The consequences of the tension between the constitution right and legal entitlement are evident in the increase in

litigation around the right to health subsequent to the reforms. Starting with the early ‘tutelas’, judges have empatheticall y

protected plaintiffs based on the constitutional right to health. In 2011 for instance, 8 out of 10 cases were granted (idem).

The magnitude of the escalation in constitutional health litigation can be dimensioned by the comparison with that of other

rights: in 1993 the right to health was ranked 11th among the most invoked rights in ‘tutelas, while by 1999 it was in first

one (Cepeda Espinosa, 2007).

Apart from the massive numbers, health rights litigation is prominently focused on individual claims brought by middle

and upper class plaintiffs (Yamin; Parra-Vera; Gianella, 2011; Procuraduría General de la Nación and DEJUSTICIA,

2008). This has led to ineffective and inequitable allocation of resources, putting financial strain on the system. However,

it has also radically transformed the conception and the role of stakeholders in the health care system. Particularly, during

the course of these cases judges have established that the responsibility of insurers and the state is not exhausted or

limited by providing the coverage mandated in the insurance contract, but also includes a continuous commitment to

achieve the effective fulfillment of the right.

In addition, litigation for the right to health has triggered forms of protection beyond the individual case. For example,

in ruling T-760/08 the Constitutional Court ordered health authorities to address the structural problems that were causing

massive litigation and to comply with the legal obligations. The ruling brought widespread benefits, including the order to

update coverage – which had not been integrally reviewed after 14 years–, and the order to adopt a plan for unification of

coverage for the Subsidized Regime mentioned beforehand, that was totally neglected by 2008, eventually leading to

unification in 2012.

Source: Own elaboration.

Based on Latin American experience, one can come to the conclusion that the larger the gap

between rights in law and rights in practice, the greater the increase in litigation will be, but not in

equity. In addition, this critical situation increases the lack of confidence in authorities and threatens

democratic governability, manifestations that go beyond the health system.

However, new tendencies of overcoming some tensions related to the right to health issues are also

present. A significant obstacle to enforcing social rights is the inappropriateness of traditional procedural

means for their safeguard. But, new perspectives on individual or collective rights’ assurance are in course

in several countries, such as, the recent developments of precautionary measures, the possibilities of use

unconstitutionality petitions, and the advancements of certainty statements, the public civil action. This

constitutional and legislative evolution in the past years is to be noted in countries like Argentina, Colombia

and Brazil (Arcidiácono; Espejo; Garavito, 2010; Abramovich; Pautassi, 2009; Gauri; Brinks, 2008).

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

Examples of this trend are the Brazilian writs of mandamus of injunction, the legitimization of the

Public Prosecutor and Defender to represent public interests, which are legal remedies that act as referral

systems among the judicial and the legislative and executive powers. In Brazil, a consensus building

approach between executive and judicial powers has been developed, creating synergies in the

elaboration of alternative remedies, which help diminish the tribunals’ workload and, at the same time,

increase compliance of judicial decisions. From the executive view, this arrangement addresses issues

that many times compromise substantial portions of budgets and may end up with the incarceration of

health managers that disregard judicial decisions. Therefore, a number of proposals on covenants,

committees and systems involving the justice system —including the Public Defender’s Office, the

Public Prosecutor and the executive power— is been experimented (Teixeira, 2011).

Another outcome of the recent incursion of the Judiciary in health issues in Brazil is growing

intersectional interaction, which has engendered a new field of knowledge, health law. In 1988 —the

same year that the Brazilian constitution recognized health as a universal right— an academic

publication called attention to the need to create a new academic discipline, health law (Dallari; Fortes,

1997). After two decades, the progress of the field of Health Law has been remarkable: post graduation

degrees from health and law disciplines have been established in important Brazilian universities, two

scientific journals were created and many books have been published; and numerous conferences,

seminars and workshops were organized with the participation of assorted stakeholders.

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

III. Different paths to UHC: distinct patterns

of citizenship

Social protection systems are considered to be arrangements for consensus building and for conveying

conflicts to the redistributive arena, where they can meet a negotiated solution. The differences in social

protection regimes are ascribed to variety of variables —from the ideological, political and institutional

features to managerial and financial issues— clustered in different ways that are accountable for the

systems’ structure and its outcomes in terms of citizenship. Previous studies have demonstrated that the

consequences of each pattern of social protection in shaping different modalities of citizenship are ra ther

remarkable (Fleury, 1994).

The traditional Latin American social protection pattern that prevailed throughout the 20th

century adopted the social security model, with benefits dependent on past contributions, establishing

dissimilar contractual rights-relationships with occupational groups. The population was segmented, as

well as the social protection systems. Since social rights were dependent on the insertion of individuals

in the productive structure citizenship (Santos, 1980) was regulated by the working conditions.

This pattern combined a mix of stratified inclusion with different degrees of social exclusion since

informality prevailed in the labor market. Hence, the majority of the population was either excluded

from social protection or received social assistance through programs and actions – public or private –

designated to alleviate the conditions for the most vulnerable groups of the poor. Although they provided

access to certain goods and services, they did not establish social rights (Fleury, 1997).

Latin America is undergoing an intense process of social reform in recent decades. These reforms

are moving Latin America societies towards a more inclusive system of social protection resulting in a

remarkable increase in coverage and poverty reduction. Governmental commitment to poverty reduction

gave rise to new social institutions and policy strategies for targeted cash transfer programs.

Concerning the universalization of health care systems there was a first generation of reforms

beginning in the last quarter of the 20th century, to address problems of exclusion, stratification, and

inefficiency. The diagnostic was that the existent social protection systems were non-egalitarian and a

mean for reproducing social injustice. The reforming proclivity faced the resistances from powerful

actors such as unions and central bureaucracy with vested interests in maintaining the old stratified and

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

exclusive social protection system. But, at the time of the reforms, the societies’ complexity evolution

revealed a new political scenario with others social actors pushing for reforms in order to assure the

universal right to health. At the same time, business interests had increased their presence in the health

care systems and tried to profit from the context of fiscal austerity that imposed severe political and

economic constraints to the expansion of state participation in social protection.

Among the different approaches to achieving UHC, we can identify (Fleury, 2001) some

paradigmatic health reform models in the region. The designs of these reforms reflect the strength of the

contradictory forces at play. They were framed in a context of inflation and economic crisis and, the

political change from authoritarian to democratic regimes. The timing of the reforms in relation to the

economic and political transformations —whether they were previous, concurrent or subsequent—,

partially explain their different design and implementation conditions (Fleury, 2000) Chile under the

military dictatorship and pressed by economic crisis adopted a market oriented health insurance model

with a subsidiary public system for the poorest, following international ad visers. The grassroots

mobilization in the transition to democracy in Brazil built a public national system that was later

implemented in adverse economic context. In Colombia was facing a permanent civil insurgence while

experienced a growing economic phase, which provided an opportunity for international and national

technocrats approved their option for an insurance model of managed competition, that include public

and private institutions.

The Chilean dual system was based on the consumer’s purchasing power, with the

individualization of risks and the absence of solidarity ties among the beneficiaries. Segmentation of the

population into two systems forged a duality of citizens, without solidarity. The Brazilian experience

aimed to create a universal public system of integral health-care attention charged with assuring social

rights through a democratic, equitable, decentralized and participatory system of social policies.

Nevertheless, it was — from the beginning —, underfunded and highly dependent on private facilities.

At the same time, the business supplementary health insurance system grew. Thus, problems of access

and quality contradict the universal right to health and defy the capacity of authorities to assure the right -

in-practice in Brazil. The Colombian reform created a competitive insurance system administered by the

government in a pluralistic managed competition model, encompassing private and public resources.

Mechanisms to avoid adverse selection and cream skimming were introduced, as well as others to

promote solidarity, such as the establishment of a basket of benefits with a fixed per capita for each

insured person and a solidarity fund. Since the benefits were different in the contributive and non-

contributive systems, and part of the population was not included in either system, at least three different

citizens’ statuses with different rights to health-care resulted.

Therefore, the reduction of excluded populations in all of these three countries was achieved with

through the expansion of health coverage, but the segmentation of the population in different regimes,

packages and opportunities to access still persists. This situation continues to drive and pushes for new

piecemeal or structural reforms to cope with the problems of equity, e quality and discrimination in the

search for universal health coverage.

Accordingly, one can distinguish some general trends towards universal health coverage and their

different impacts on the process of citizenship building, by examining case countries examples.

A. Universal health systems in a context of austerity

In Latin America we can find three different experiences of building up and maintain universal health

systems in Cuba, Brazil and Costa Rica. In all the three cases the universal right to health was based on a

public system: exclusively public in Cuba; dependent on private facilities in Brazil, and a social insurance

system in Costa Rica. In Cuba and Brazil the support for universalize the right to heath arose from the

political process, with strong social mobilization. Differently, in Costa Rica, societal pressures and

preferences played a relatively minor role while governmental leadership and technocrats pushed the reform.

However, in a context of increasing economic austerity, the sustainabil ity of these reforms

depends on maintaining social support and government commitment to reform as well as to the reduction

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

of the power of veto players’ actors that can move away from the reform proposal, either because of

scarcity of resources or because the course is deviated to fulfill particular interests.

The Cuban experience of building an outstanding universal health system is unique in the region.

It was part of a revolutionary process, which began in the early 1960s with different measures that ended

with the creation of the National Health Care System. The single public system encompasses all

functions in health sector. The political commitment to assure the right to health can be illustrated with

some examples, such as the fact that the health budget in 1978 increased 20 times fold from 1958

(CEBES, 1984) and the extension of the services to rural areas expanded hospital facilities from 1 to 53

rural hospitals in 1970, in a span of 10 years.

The system is organized according the following principles: (i) Health care is a right,

available to all equally and free of charge; (ii) Health care is the responsibility of the state;

(iii) Preventive and curative services are integrated; (iv) Public participation in the health system’s

development and functioning; (v) Health care activities are integrated with economic and social

development, and (vi) Global health cooperation is a fundamental obligation of the health system

and its personnel (Keck; MPH; Gail, Reed, 2012).

Its centralized supervision with flexible and decentralized operative structure permitted the

achievement of high standards in the development of science and technology, human resources

formation, and an effective and efficient strategy and plan of family doctors and nurse. It is also reflected

in the exceptional outcomes in the health indicators, despite in the economic crisis that started with the

collapse of Soviet Union. The Cuban health system has powerful political support from government and

the population, since its history is intertwined with the success of the revolutionary regime and

institutional stickiness. However, the current context of rigorous economic austerity imposes severe

investments restrictions that can, in the future, jeopardize this political support.

At the root of the Brazilian experience in building a national health system was a strong political

coalition that pushed for the expansion of social rights as part of the transition to democracy. In this

case, the singularity was a social protection system designed by civil s ociety movements and its strong

association with the transformation of the state and society into a democracy. This hallmark added some

important characteristics to this reform, such as the combination of a highly decentralized health care

system with a decision-making process that incorporates cooperation among federative bodies and

organized society in participatory arenas. The existence of political spheres for negotiation and

instruments for consensus-building were important innovations in the intergovernmental relationships,

and in the relationship between the state and social actors.

The Constitution of 1988 established the Social Security arrangement as the core of the social

protection system that was destined to ensure rights related to health, social insurance and social

assistance as universal rights of citizenship. The new constitutional social policy model is characterized

by the universality of coverage, the recognition of social rights, under the guarantee and duty of the

state, and the subordination of the private sector to regulation based on the public relevance of actions

and services in these areas. The new public arrangement is a decentralized public network cooperatively

managed by participatory mechanisms, such as Councils and Conferences (Fleury, 2011).

The participatory mechanisms are composed from deliberative instances that guarantee the equal

participation of organized society in each sphere of government that also includes health authorities ( see

table 2). The Councils are mechanisms of social control and budget approval, evaluating executive

proposals and performance, and the Conferences form the polity through discussing a set of subjects in

order to convey different interests to a common platform.

Social participation is also evaluated as an important component of sustainable health programs.

Nevertheless, as the main hallmark of the Brazilian society is the unequal distribution of power and

resources, this trait is also present in health field, expressed by the absence of pressure to include

neglected diseases in the government priorities or in the appropriation of the participatory mechanisms

by more organized groups.

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

TABLE 2

SUB-BRAZILIAN POLICY FORMATION PROCESS AND DECISION-MAKING STRUCTURE

Levels of

government

Consensus building

and managerial

insturments

Health authority

Functions

Decentralization

process

Social control

mechanism counselors:

Policy formation

mechanism

Federal (elected)

States (elected)

26+1 DF

Municipalities

(elected)

5 507

Central Fund

National Policies

And Programs

Target Programs

State Fund

Reginal System

Coordination

Reference

Services

Municipal Funds

Municipal System

Coordination

Management of

Delivery Network

Human resources

Health care centers

and Hospitals

Financial resources

Levels of Autonomy

A- Management of

the Local Health

Care System

B- Management of

the Primary

Health Care

Program

50% Government

50% Society

National Health

Conference

State Health

Conference

Municipal Health

Conference

Source: Own elaboration.

Consortium

Bi-partisan Commission

Tri-partisan Commission

Ministry

Municipal

Secretary

State

Secretary

National

Health

Council

State

Health

Council

Municipal

Health

Council

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

Besides, after two decades, the subdued public share of health spending (41%), the predominance

of private hospitals (69.1%) and beds (61.3%) are sufficient to demonstrate how economic and political

constraints made possible the dissonance between the legal status of universal right to health and the

present difficult to access services and improve health conditions. However, the equality of rights does

makes it possible to fight for its achievement (as demonstrated in the AIDS policy).

The case of Costa Rica demonstrates how a country, which up to the 1930s was classified as

underdeveloped in social policies, attained with the strongest human development indicators in the

region by the 1970s. The trajectory to universalize social protection in Costa Rica started in the early

1940s with the creation of an inclusive social insurance system, which differed from the regional pattern

since it was focused on lower income groups, instead of covering occupational groups. The bottom-up

expansion from poor to the lower and, only then, to upper middle-income groups is considered a

milestone for establishing a basic floor of benefits.

The starting point in the 1940s was common to other countries in the region and was explained as

a consequence of the ideas spread by international agencies based on the new social security paradigm.

Nevertheless, this external variable does not explain the singularity of the Cost Rican political option

and its sustainability. In confluence with the international scenario, internal factors included: a) the role

of the political leadership, b) the absence of social veto actors with enough power to stop the new

program or modify it to conform with particularistic interests; and (c) the central role of technocrats who

brought the international debates to Costa Rica putting the ideas of political leadership into practice, and

building a technical consensus around the new program (Martínez; Sánchez-Ancochea, 2012).

The Costa Rican Social Insurance System (CCSS) 2is an autonomous entity that absorbed the

Health Ministry network and is responsible for providing integral health care for different types of

beneficiaries, according to their insurance condition. The primary care network - EBAIS3- covers the

population throughout the country. The social security regimes administered by the CCSS distinguish

the following types of beneficiaries: (i) direct (maintains a conventional employer -employee

relationship), (ii) self-insured (voluntary insured independent workers), (iii) pensioner, (iv) family

insured (indirectly-insured relatives of direct beneficiaries: wage-earners, pensioners, or self-insured

beneficiaries, and (v) insured by the State, in which case financing is the sole responsibility of the State.

Health insurance in Costa Rica is integrated; that is, there is no separation of service packages

depending upon different types of insurance. Every insured is entitled to integrated health-care. But,

since universal coverage to health-care was gradually achieved, some limits were fixed, reducing the

scope of drugs prescriptions and disease treatments. Notwithstanding, the fact that the Costa Rican

health-care system shows important indicators of successful performance, the system is also facing

significant challenges regarding its sustainability, growth, and level of equity. These challenges arise

from the dependency on a tripartite funding mechanism, typical of social insurance, and increasing

offering of private and international healthcare and insurance services considered warning indicator

about the loyalty of the insured population towards the system (Rocío Sáenz; Bermúdez; Acosta, 2010).

The Health Insurance deficit reached 7.6% of the total health expenses by 2010 (Veja, 2012). As a

universal insurance, right to health in Costa Rica is funded by tripartite contributions. Although

presenting one of the lowest unemployment rates in the region, health inflation, economic crisis and

migrations endanger the financial balance. The actuarial perspective in a social insurance model puts

strict limits on expenditures, which leads to the definition of a maximum value for treatments and drugs

covered. In spite of this difference, the State must guarantee the universal right and compliance depends

on strong political will.

2Caja Costarricense de Seguro Social.

3Equipos Básicos de Atención Integral en Salud.

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

The three country experiences show that economic austerity imposes severe restrictions on

universal health systems. Their sustainability depends on the political support from government and

social actors. Nevertheless, social mobilization can decrease as a consequence of the incapacity to turn

rights in law into rights in practice. The constraints are accentuated by the restricted fiscal basis for

funding health systems and the dependency on private providers for different health inputs and services.

Hence, it contradicts the equity requirements of universal citizenship, either by the consumers’

differentiation or by the permanent stress between profit interests and public policies based on solidarity.

Solidarity and social cohesion are expected outcomes of the universal systems, but, when they become

ineffective, the result can lead to high levels of judicialization, increasing inequity, putting in danger the

health system design and threatening democratic governability.

B. Reducing the gap among insurance plans

Some countries in the region have chosen UHC based on the existence of different insurance plans,

including Chile, Colombia, and Mexico. The reforms towards universalization in insurance systems

— dual, multiple or managed — were rooted in neoliberal ideology where the market is considered the

best solution for the inefficiency of the state, avoiding in this way the prevalence of monopolistic interest

groups, such as bureaucracy and corporative unions. The “New Public Management” current provides

the tools for managing the reformed system, based on separating financing and provision functions with

the introduction of competitive markets and quasi-markets in the health provision and insurance.

As the earliest experience, the Chilean was a radical structural reform that resulted in a dual health

care system. Notwithstanding, a design that attributed to the public health system FONASA4only an

insurance function, it did not completely succeed. Hence, the public sector maintained other functions in

provision and stewardship and progressively moved towards a regulation of the private insurance sector.

With the restoration of democracy, the elected governments sought alternatives to overcome the

inequities of the dual system through piecemeal strategies: steadily increasing public health expenditure;

eliminating subsidies to the private sector; and restoring state regulation. This process culminated in the

creation of a plan of explicit guarantees for health care, called AUGE, to be implemented in both

systems: public and private.

This new regulation aimed to reduce the gap between the two systems, approaching in this way

the Chilean situation to that in Costa Rica, where health care procedures are guaranteed. But it still

differs in a core issue, by maintaining a dual system with a public system in parallel to a profitable

private insurance industry. While the exclusion of some previous coverage in Costa Rica has led to

litigation the plan AUGE has, on the contrary, only implemented guarantees after 2005. This can explain

the relative inexistence of litigations in Chile at this moment.

Although the recent efforts are addressing the reduction of gaps between the two system

—private and public— relating to citizenship, the maintenance of dual regulated systems, although

assuring guarantees that improve health conditions, does not provide the requirements to achieve

cohesion and equal citizenship.

4Fondo Nacional de Salud.

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

BOX 4

GUARANTEES: THE AUGE PLAN IN CHILE

The plan of guarantees in health care access (AUGE – Universal Access with Explicit Guarantees) was conceived as

a system of progressive implementation that generated enforceable rights for the comprehensive care of the incorporated

diseases. It was argued that it was not enough to proclaim the right to health-care, but that conditions (legal, functional

and material) had to be created for its exercise. This is why the guarantees were proposed as a way to empower people

to obtain the services they needed, because despite being formal holders of public or private health insurance coverage,

there was a clear social gradient in terms of access to the detriment of the poor and less educated.

A group of experts were commissioned to design a major reform (Fundación Democracia y Desarrollo, 2000) in order

to tackle the inequality, which was identified as the biggest problem of the Chilean healthcare system, despite the strong

injection of resources in the public health sector during the 90s. Regardless of the good count ries health indicators, many

studies showed large differences in life expectancy, disability, access and out-of-pocket expenses related to income

levels and education.

Equity must be achieved by public policies designed to mitigate the unequal distribution of wealth, power and

education in society (Ministerio de Salud de Chile, 2010). In this respect, regarding access to health services, the

Commission considered the need to prioritize diseases for which cost -effective treatments were available (Vargas;

Poblete, 2008). Therefore, proposed a guaranteed plan established by law, which would cover diseases with the highest

incidence in generating disability and premature death. The bill was sent to Congress in May 2002 and passed in August

2004 (Barrera, 2004). It was strongly criticized in the healthcare sector, both by the unions and private providers, but very

well received by the population.

Since the plan applied to both the public and private sectors, it has resulted in increased state regulation, imposing

health care guarantees for a list of pathologies with maximum waiting times, limited co -payments and in accordance with

clinical guidelines established by the Ministry of Health.

Starting in 2002, the plan was implemented in the public health system throughout the country, starting with

guarantees for three conditions. The plan came into full effect in June 2006, with 56 medical conditions. Since then, it has

been revised twice: in 2009, when 13 additional pathologies were covered; and in 2012, when 11 more were added. With

these additional conditions coming into force in July 2013, the plan reached a total of 80 guaranteed diseases (Ministerio

de Salud de Chile, 2013). Therefore, demonstrably, it was not a "basic benefits package", but incorporates

comprehensive care, with the complexity required for each case, based on enforceable guarantees of access,

opportunity, quality and financial protection.

Up to 2012, 11.864.093 people benefited from these guarantees (70% of the population) (Departamento de Estudios

y Desarrollo, 2011), which led to a greater awareness of health rights, improvements in access for the most vulnerable

sectors and a reduction in mortality and disability (World Bank, 2013) in diseases such as heart attack and cervical

cancer, among other guaranteed diseases (Bitrán; Escobar; Gassibe, 2010).

Source: Own elaboration.

In the Colombian case, the managed completion model has been threatened by limitations to

coverage expansion, due to the restrictions of solidarity, based on formal workers c ontributions and the

critical intermediary5role of for-profit insurance companies, EPS.6A new project is now in the

Congress, assuring the role of the State in guaranteeing the right to health and put forward the creation of

a Single Health System,7responsible for a universal social insurance with equal conditions and benefits.

This project redirects the Colombian health system to a national public insurance. However,

powerful vested interest linked to the present system still can veto the projected reform or approved

another conciliatory proposal.

Mexico is also adopting the insurance strategy to universalize health coverage. It is a singular case

of a highly segmented public system. Mexico’s health-care system is essentially public, but available

data reveals significant out of pocket expenses by families in order to cover health-care costs. Even

though people predominantly depend on public services, they still often utilize private services,

especially at the first level of medical attention and purchase medicine.

The national health services are highly fragmented and adhere to a strict hierarchy. Health

services are provided through five different social security entities. According to data from 2011, the

5As collecting contributions, enrolling and assuring health plans, and paying providers.

6EPS – Empresas Promotoras de Salud.

7Sistema Único de Salud.

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

Mexican Social Security Institute (IMSS) has 52.8 million beneficiaries, of which 10.8 million would

fall under the IMSS-Oportunidades System that covers a lower range of services than the 47.4 million

beneficiaries under Social Security. On the other hand, the Social Security Institute for State Worke rs

(ISSSTE) is responsible for 12.2 million people and the social security institutions for the Mexican Oil

Company, Army and Navy have 1.1 million beneficiaries.8The “Seguro Popular” or National Healthcare

Protection System has seen the most dynamic growth in the last decade and in 2011 it reported having

51.8 million beneficiaries. Other public systems cover 0.9 million people, while 2.0 million people are

covered by private systems.

This paints a picture regarding of widespread inequality in access to health-care. However, in

juxtaposition with the presented segmentation and stratification there was room for an interesting experience

of building consensus in favor of a universal social coverage for a target population, regarding non-

contributive pensions in Mexico City. It illustrates the importance of government responsiveness to social

demands, although it also demonstrates its constriction to a local government policy.

All of these countries experiences aimed to eliminate exclusion and some of them also sought to

close gaps among different insurance plans. The insurance path to universalization can minimize

stratification but cannot eliminate discriminations, since the existence of a plurality of rights to health is

inherent to this pattern. Universalization, in this path, is a governmental and technocratic project that

does not requires social participation.

C. Targeted programs in segmented systems

In several countries in the region one can observe a trend to create National Health Systems, starting

with the introduction of targeted programs covering the most vulnerable groups. In those cases, the

National Health System designates a comprehensive number of different conditions of ins urance with

public and private providers, considered as complementary. The aim is to achieve universality in

fragmented systems with high levels of exclusion, in predominantly multicultural societies where

indigenous and rural groups have been excluded from coverage. This type of universal insurance, like

the scheme adopted in Peru, encompasses three regimes according to the contributive capacity of the

insured person. The segmentation of the system and the differentiation of entitlement conditions

reproduce the traditional Latin American pattern of citizens’ stratification, although trying to reduce the

level of exclusion.

Targeted programs focus on alleviating poverty and protecting more vulnerable groups, aiming to

achieve universal insurance coverage, but far from a universal healthcare system blueprint. The public

insurance of the poor may conciliate the combat of poverty in democratic regimes with the possibility to

enlarging the health care market, although even in the richest countries in the region h ave no more than

25% of the population has voluntary private insurance (table 1, annex 1) those programs are listed for

each country).

8Informe al ejecutivo federal y al Congreso de la Unión sobre la situación financiera y los riesgos del Instituto Mexicano del Seguro

Social2 011-2012, avalaible at:http://www.imss.gob.mx/estadisticas/Documents/20112012/informecompleto.pdf.

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

BOX 5

THE EX POST CONSENSUS IN FAVOUR OF A UNIVERSAL

NON-CONTRIBUTIVE PENSION IN MEXICO CITY

In 1997 the Mexican Federal Government enacted a cash transfer program called Progresa which changed its name

to Oportunidades in 2002. It is a means-tested, targeted and conditional program. As it has been established, its main

impact on poverty has resulted in the reduction of its intensity rather than in its incidence (Banegas, 2011). In this context

in 2001, not with the intention of replacing Oportunidades, but opening a new perspective, the Mexico City government

innovated in the design of income support and healthcare policies through a universal, unconditional and non -contributive

pension, just for the habitants of Mexico City, which amounted to at least half a minimum wage for those over 70 years of

age (later lowered to 68 years of age in 2008) and the establishment of free access to all available treatments and

medications in the health-care program for the segment of the population without social security. Both programs were

elevated to the status of law (in 2003 and 2006 respectively) as demandable rights (Martínez, 2011). However, one of the

relevant differences is that Oportunidades is a national program and the non-contributive pension works only for the

Mexico City elderly population (Lo Vuolo, 2013). The universal pension was criticized by fo rces across the entire political

spectrum, as being populist and having a handout mentality, in addition to being catastrophic for local finances. The

program's opponents highlighted the fact that it should rather be limited to “those who needed it” and th at it could not be

in exchange for nothing.

The program was born as not only an innovative and daring initiative, but also a controversial one. As the program

was implemented, however, the controversy began to fade and the construction of an ex post consen sus, clearly

expressed in its status as a right, began after a brief span of time. In a span of five years, from 2003 to 2008, the program

was firstly rejected by the Legislative Assembly, secondly, a few months later, with a different political composition it was

approved only with the votes of the party in the government, and, by 2008 a reform initiative was approved unanimously,

reducing the age to 68 years (Yanes, 2011). Universality and financial feasibility were no longer questioned, rather the

debate centered on how much to lower the age. An ex post consensus had formed, not necessarily based on a change in

the convictions and values of legislators, but rather in the strong social legitimacy that the pension had acquired in the

streets and homes of the city, which later became political legitimacy and legal institutionalization.

The citizen's pension is in fact a modest monetary transfer (around 70 dollars a month), not enough even for a

complete basic food basket, but whose impact on the incomes of senior citizens cannot be underestimated, particularly

for older women who report it as their only or main source of income. It has also had a very important impact on the

reorganization of social relations and the subjectivity of people. Pool (Instituto De Atención de Los Adultos Mayores del

Distrito Federal, 2009) results assert that the entitled persons assessed the pension in very favorable terms and even the

economic impact of the pension resulted to be very significant for the majority. However it is ac knowledged by all the

recipients that the benefits go far beyond the monetary contribution, especially in aspects related with self -esteem, safety

and independence. Also relevant is the feeling of acting as social actors within the family, the community an d the society

(Duhau, 2009), as well as in the use of public spaces (Asamblea Legislativa Del Distrito Federal, 2008). This pertains to a

perspective of dignity, broadened autonomy and a larger sense of independence in the last stage of life.

Source: Own elaboration.

ECLAC9makes a reasonable argument that the gradual implementation of rights does not make

them any less obligatory (Machinea, 2007). However, this argument can fulfill equity, but not the

equality principle. Accordingly, it is only acceptable when progressivity does not signify the coexistence

of distinct protection regimes. As citizens’ rights are not dividable, they can only be increased within a

universal basis. Otherwise, universalization could be a veil to hide the pervasive stratification and

exclusion from high levels of health care.

In some countries in the region —Ecuador, Bolivia, Venezuela— one can also observe efforts to

assure the health to right as part of the consolidationof a new social and political arrangement in pluralist

and multicultural societies, in an emancipation of colonial and oligarchic power. The challenge is to

conciliate the democratic regime in a capitalist economy with the communitarian traditions, in situations

of popular mobilization and conflictive rule.

9Economic Commission for Latin America and the Caribbean.

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

BOX 6

RIGHT TO HEALTH AS PART OF THE SUMAK SAWSAY

Far from the western tradition where human rights are individualized and considered in a fragmented way —civil,

politic, social and environmental— the concept of Sumak Kawsay” assumed in the new Constitutions of Ecuador and

Bolivia comes from the holistic and communitarian indigenous tradition. The requirement of an intercultural approach for

people’s rights brought this principle of promoting balance and harmony between the person and the surrounding context

as a key value articulating other communitarian and individual rights.

Another assumption underlying this principle is the de-colonization of Latin American societies, inaugurating a new

political pact to replace old oligarchic arrangements that ruled in favor of the elites with the exclusion of the poor, mostly

the rural indigenous populations. A new ethics is required regarding power exercises, mobilizing the citizenship in closet

connection with authorities, as basic to assure legitimacy. This is also reflected in the health sector, where principles such

as compassionate care and intercultural health practices are added to participation, equity, and, universality as guidelines

for healthcare system.

This conception can represent a powerful impulse towards universal health care rights, and may influence other

countries in the region. However, the right in practice for all citizens under equalitarian conditions is dependent on

overcoming the highly segmented health coverage schemes, and goes further than a program of primary attention.

It is still unpredictable whether this holist view will prevail over predominant fragmented policies and the medical

model, concentrated in illness, reshaping in health field the relations among state, society and citizens. However, this

perspective is the only one that explicitly connects universalization of health care with the perspective of shifting from

curative to preventive care in a holistic basis. In this sense, it places the social determinants of health as the core of a

multicultural model.

Source: Own elaboration.

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

IV. Conclusions: towards a community of citizens

In this article we analyzed different national experiences towards health-care universalization. Although

they share the same goal to expand coverage, they take different paths, according to the strategy adopted

and differ regarding citizens right to health entitlement.

Universality is expressed not only regarding entitlements to access health facilities, but also in

terms of the differences in systems and health care networks; packages of benefits with differentiated

levels of attention; requirement of co-payments; feasibility and quality of the services. Each of these

variables can introduce deep stratification inside a universal health coverage situation.

In addition, there is a crescent interest of profitable international and national companies in the

insurance, drug and hospital branches, in the new market represented by Latin-American consumers. We

should be aware of universalization as a market demand and the consequences of social protection

insertion into the circle of accumulation, since it provokes a re-stratification of the consumers. This

perspective contradicts the egalitarian principle of the right to health and impedes the creation of social

cohesion among citizens.

Using citizenship as an analytical framework allows us to differentiate the common attempt to

provide healthcare in the region, since paths to universal coverage does not always signify the extension

of the right to health to all citizens in equalitarian basis.

Beyond analyzing the presence of specific features to indicate the realization of the right to health

in the region, we must consider the existence of clusters where some aspects that are crucial to define a

pattern of universalization with different social projects of sociability coexist.

In all the three patterns we identified efforts to overcome the exclusion to health care are

observed, although the equalitarian right to health is not common to all of them, nor is the capacity to

transform the right in law into a right in practice. Moreover, some new tendencies towards a

multicultural approach to health dispute whether the universalization of health care means the

consolidation of the hegemony of the curative model with high technology consumption in the health

sector, which is far from the social determinants perspective. Therefore, the trend to universalization is

not unavoidably a path to build a community of citizens.

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

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ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

Annex

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

TABLE A.1

HEALTH EXPENDITURE, POPULATION COVERAGE AND CONSTITUTIONAL AND LEGAL FRAMEWORK

Health expenditure

Health coverage

Health constitutional and legal

framework

Universalization through

programs

Argentina

2009

Total expenditure on health: 8.6 – 9.4%

of GDP

Public expenditure: 70% 2012

Social security: 55%

Bolivia

(Plurinational

State of)

2008

Total expenditure on health: 4.62%

of GDP

Public expenditure: 42%

Social Security: 28%

Brazil

2008

Total expenditure on health: 8.4%

of GDP

2007

Public expenditure: 41,6%

2012

SUS: 100%

Private 25% (double coverage)

Health is a right of everybody and

duty of the State, ensured by social

and economic policies aimed at

reducing the risk of diseases and of

other damages and the universal and

equal access to the efforts and

services for its promotion, protection

and recovery. (Federal Constitution of

Brazil Art. 196 to 200 and Act

8080/90).

Chile

2008

Total expenditure on health:

6.56% of GDP

2006

Public expenditure: 56%

2012

Public Subsystem (FONASA): 74%

ISAPRE: 17%

The State shall ensure the execution

of the health efforts, be them provided

through public or private institutions.

Each person shall have the right to

choose the health system from which

he/she wishes to benefit, being it a

public or private one. (National

Constitution of 1980, Art. 19)

Chile

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

Table A.1 (continued)

Health expenditure

Health coverage

Health constitutional and legal

framework

Universalization through

programs

Chile

2008

Total expenditure on health:

6.56% of GDP

2006

Public expenditure: 56%

2012

Public Subsystem (FONASA): 74%

ISAPRE: 17%

The State shall ensure the execution

of the health efforts, be them provided

through public or private institutions.

Each person shall have the right to

choose the health system from which

he/she wishes to benefit, being it a

public or private one. (National

Constitution of 1980, Art. 19)

Colombia

2009

Total expenditure on health: 6.4%

of GDP

Public expenditure: 84%

2011

Contributory system: 42.6%

Subsidized system: 48.4%

Special systems: 4.8%

The 1991 Constitution assured the

health to right as a universal non-

renounceable right, meanwhile the

Law 100 of 1993 provided an

insurance system for health, for those

with economic capacity, that gives the

right to a package of services.

Costa Rica

2011

Total expenditure on health:

10.9% GDP

Public expenditure: 70%

2009

Caja Costarricense de Seguro Social

(CCSS): 75%

Indigentes por cuenta del Estado: 12%

Privado: 30%

Público ( salud pública colectiva): 100%

Hay doble cobertura.

Consumers and users are entitled to the

protection of health, to freedom of

choice and to equal treatment. (National

Constitution of 1949, Art. 46)

The new constitutional chamber of the

Supreme Court (Sala Constitucional or

Sala IV) has declared health as right

based on international instruments

ratified by the country and in the Article

21 of the Constitution, which states “life

is inviolable.”

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

Table A.1 (continued)

Health expenditure

Health coverage

Health constitutional and legal

framework

Universalization through

programs

Cuba

2009

Total expenditure on health:

11.9% GDP

Public expenditure: 96%

2009

Social security: 100%

Everyone has the right to treat and

protect their health. The State

guarantees this right. (National

Cnstitution of 1976, Art. 50)

Ecuador

2008

Total expenditure on health: 8.5%

of GDP

Public expenditure: 52%

2012

MSP: 70%

Public Insurance: 21.2%

Private Insurance: 8.2%

Health was explicitly recognized as a

right to every person by the new 2008

Constitution. Health public services

shall be universal and free in all

service levels. The health system is

based on the principles of equality,

universality, solidarity, interculturality,

precaution and bioethics with focus

on gender and generational.

(National Constitution of 2008,

Art. 32 and 362)

Mexico

2011

Total expenditure on health: 6.2%

of GDP

Public expenditure: 49%

2010

Público (Secretaría Federal y Secretarías

Estatales de Salud): 42%

Seguro popular: 15%:

IMSS: 45%

ISSSTE: 7%

PEMEX y Fuerzas Armadas: 6%

Privado: 3%

Sin cobertura: 1%

Hay doble cobertura.

National Constitution in Force: 1917

Article 2-B: "To reduce deficiencies

and shortcomings affecting

indigenous peoples and communities,

such authorities are obliged to: (...)"

III. Ensure the effective access to

health services by means of the

broadening of the national system

coverage, properly availing of the

traditional medicine, as well as

support the nutrition of indigenous

peoples by means of food programs,

especially for children (...)".

OportunidadesProgram

(cash transfer - senior

citizen's pension).

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

Table A.1 (continued)

Health expenditure

Health coverage

Health constitutional and legal

framework

Universalization through

programs

Article 4: "Man and woman are equal

before the law (...). Every person has

the right to the health protection. The

Law shall define the terms and

conditions for accessing health

services and shall determine the

assistance to be provided by the

Federation and federal organisms in

matters of general health (...)".

Peru

2010

Total expenditure on health: 5.2%

of GDP

Public expenditure: 55,8%

2010

Total coverage: 64.7%

Comprehensive insurance on health: 39.3%

Social security: 20.7%

Other insurances: 4.7%

The State ensures free access to

health provisions and pensions through

public, private or mixed organisms.

The Constitution specifies the right to

health to the person with disabilities.

(National Constitution of 1993,

Art. 46 and 7).

Plan Esperanza

(comprehensive cancer care to

the poor people, who are in the

Integral Health Insurance (SIS).

Uruguay

2008

Total Health expenditure: 7.5%

of GDP

Public expenditure: 63,8%

2012

National Health Insurance: 53%

ASSE: 30%

Military or Police health plan: 7%

Pre-paid IAMC: 12%

Private Insurance: 1.2%

Double coverage is considered.

The Constitution of 1967 (latest reform

in 2004) declares that the State shall

supply for free the prevention and

assistance means to indigent or poor

people lacking resources.

The Act 18211 of 2007 Creates the

National Integrated Health System

(SNIS) and declares health as a right of

all inhabitants residing in the country.

Oral Health Program (focused

on children, pregnant women

and elderly).

Previniendo Program

(prevention of risk factors

associated with NCDs).

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

Table A.1 (concluded)

Health expenditure

Health coverage

Health constitutional and legal

framework

Universalization through

programs

Venezuela

(Bolivarian

Republic of)

2003

Public expenditure: 3.4% of GDP

MPPS: 61%

Health Fund: 21%

Contributions to health services

and public insurance: 18%

2012

SNPS: 100%

2005

IVSS: 17.5%

Private Insurance: 11.7%

Double coverage (IVSS and private): 2.4%

Health is an essential social right that

should be assured by the State as part

of the right to life.Creation of a National

Public Health System (SPNS) of

intersectorial character, de-centralized

and participative, multi-ethnic,

multicultural and multilingual

pertinencei, by the principles of

gratuity, universality, integrity, equality,

social integration and solidarity.

(National Constitucion of 1999,

Art. 83 and 84).

Mission Barrio Adentro

(comprehensive publicly

funded health care, dental

care, and sports training to

poor and marginalized

communities).

Mission Milagro (recovery of

vision). (Both programs are in

cooperation with Cuba).

Source: Health Systems in South America: Challenges to the universality, integrality and equity. South American Institute of Government in Health, Ligia Giovanella, Oscar Feo,

Mariana Faria, Sebastián Tobar (orgs.). Río de Janeiro: ISAGS, 2012. 836 P.

ECLAC – Financing for Development Series No. 249 Right to health in Latin America: beyond universalization

Series

Financing for Development .

Issues published

A complete list as well as pdf files are available at

www.eclac.org/publicaciones

249. Right to health in Latin America: beyond universalization (LC/L.3647), 2013.

248. El sistema financiero en América Latina y el Caribe: una caracterización (LC/L.3746), 2013.

247. Comercio exterior, cadenas globales de producción y financiamiento: conceptos y relevancia para América Latina

y el Caribe (LC/L.3745), 2013.

246. Macroeconomics for Development in Latin America and the Caribbean: Some new considerations on counter

cyclicality (LC/L.3744), 2013.

245. Sistema de pagos transnacionales vigentes en América Latina: ALADI, SML y SUCRE (LC/L.3692), 2013.

244. A regional reserve fund for Latin America (LC/L.3703), 2013.

243. Weak expansions: A distinctive feature of the business cycle in Latin America and the Caribbean (LC/L.3656), 2013.

242. Dos décadas de cambios en la equidad en el sistema de salud colombiano: 1990-2010 (LC/L.3512), 2012.

241. Conglomerados de desarrollo en América Latina y el Caribe: una aplicación al análisis de la distribución de la

Ayuda Oficial al Desarrollo (LC/L.3507), 2012.

240. Reforma al sistema de pensiones chileno (LC/L.3422), 2011.

239. Equidad y solvencia del sistema de salud de cara al envejecimiento: El caso de Costa Rica (LC/L.3370), 2011.

238. La protección social en Chile, El Plan AUGE: Avances y desafíos (LC/L.3348), 2011.

237. El caso de las cajas de ahorro españolas en el período 1980-2010 (LC/L.3300-P), Node venta S.11.II.G.21

(US$10,00), 2011.

236. The European investment bank and SMEs: key lessons for Latin America and the Caribbean, (LC/L.3294 -P), sales

NoE.11.II.G.16 (US$10, 00), 2011.

235. El futuro de las microfinanzas en América Latina: algunos elementos para el debate a la luz de las

transformaciones experimentadas (LC/L.3263-P), Node venta S.10.II.G.68 (US$10,00), 2010.

234. Re–conceptualizing the International aid structure: recipien-donor interactions and the rudiments of a feedback

mechanism (LC/L.3262-P), Node venta S.10.II.G.67 (US$10,00), 2010.

233. Financiamiento a la inversión de las pymes en Costa Rica (LC/L.3261-P), Node venta S.10.I.G.66 (US$10,00), 2010.

232. Banca de desarrollo en el Ecuador (LC/L.3260-P), Node venta S.10.II.G.65 (US$10,00), 2010.

231. Política cambiaria y crisis internacional: el rodeo innecesario (LC/L.3259 -P), Node venta S.10.II.G.64

(US$10,00), 2010.

230. Desenvolvimento financiero e crescimento econômico: teoria e evidência (LC/L.3257-P), Node venta S.10.II.G.62

(US$10,00), 2010.

financing FOR development

249

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Oct 2017

Resumo: O artigo analisa o processo recente de reformas da atenção primária à saúde nos países da América do Sul, discutindo alcance e desafios para a constituição de uma atenção primária integral nos sistemas de saúde da região. Tendo como fontes de informação estudos de caso realizados nos 12 países, toma, como eixos de análise, componentes estratégicos da concepção e implementação da atenção primária à saúde: abordagens nas políticas nacionais, características do financiamento, organização e prestação e a força de trabalho em atenção primária à saúde. A análise transversal em perspectiva comparada oferece um panorama da atenção primária à saúde nos países da região e destaca convergências e assimetrias. Observa-se, como traço comum, o resgate da concepção ampliada de atenção primária à saúde com componentes familiar e comunitário, base territorial, equipe multidisciplinar, incorporação de agentes comunitários de saúde e participação social. Na implementação, heterogeneidades nos avanços e contradições nos modelos se destacam. A insuficiente oferta de médicos, dificuldades para provisão e fixação em zonas remotas e periféricas, bem como na própria atenção primária à saúde, precariedade dos vínculos e ausência de carreira são problemas comuns, com iniciativas recentes de intervenção estatal no direcionamento da força de trabalho para o sistema público. A segmentação da oferta de atenção primária à saúde converge com a segmentação da proteção social em saúde nos diversos países seja pela manutenção dos seguros sociais, dos seguros seletivos e focalizados, pela cobertura por seguros privados de saúde ou pela manutenção de populações excluídas do direito à saúde. Argumenta-se que a implementação da atenção primária integral está condicionada às modalidades de proteção social em saúde vigentes.

The Welfare State in Latin America: reform, innovation and fatigue

Article

Full-text available

Jul 2017

Sonia Fleury

This paper analyses the challenges of building the Welfare State in late democracies in Latin America. The author shows how the literature has identified different social protection patterns in the region and how recent reform models have transformed institutions, in an unfavorable socioeconomic context. The results point to the emergence of a mixture of social protection measures that have increased coverage and reduced poverty, but are unable to guarantee universal citizens’ rights and longevity.

The Welfare State in Latin America: reform, innovation and fatigue

Article

Full-text available

Jul 2017

Sonia Fleury

Judicialização de políticas públicas de saúde: a atuação de instituição em redes organizacionais

Article

Aug 2024

Anderson Monteiro de Souza

O presente trabalho tem por objetivo apresentar um estudo que analisa e identifica forças e fraquezas na atuação convergente em rede por órgãos estatais na Câmara de Resolução de Litígios de Saúde e no Núcleo de assessoria técnica da Secretaria de Estado de Saúde, perante a Justiça Federal do Rio de Janeiro, na resolução de conflitos que envolvem demandas sanitárias. Foi realizado um estudo de caso conjugado com pesquisa de campo, bibliográfica e documental, na busca de descrever a intervenção da Câmara de Resolução de Litígios de Saúde e do Núcleo de Assessoria Técnica da Justiça Federal do Rio de Janeiro, no contexto da vida real em que atuam, ou seja, a judicialização de políticas públicas de saúde na cidade do Rio de Janeiro. Os resultados mostram que a atuação em rede de órgãos governamentais gera ganhos sociais para os cidadãos do Rio de Janeiro.

Estado de Bem-Estar: em busca de uma teoria latino-americana

Chapter

Jan 2024

Sonia Fleury

Righting Wrongs: The Judicialisation and Justiciability of Health-Related Rights in the Americas

Article

Full-text available

Oct 2022

The judicialisation phenomenon is prominent in the Americas, where people who suffer from diseases and adverse health impacts of environmental pollution utilise judicial institutions seeking the states' respect and protection of their right to health. Litigation has also been a mechanism for the local community and civil society organisations to promote the right to a healthy environment. Gaps between the rights recognised in law and realised in practice have been well documented in the growing body of literature on such judicial activism for health. Reviewing the health-related cases decided by regional and international human rights bodies such as the Inter-American Commission on Human Rights, Inter-American Court of Human Rights, and other UN human rights treaty-based committees, this paper presents the ways in which these institutions frame health(care) issues. These cases were internationalised when local remedies were exhausted while the states had not fully addressed the complaints. As health science and intervention develop, internationalising relevant rights claims have been proven to be a helpful approach to achieving the highest attainable standard of health, but the strategy may also be limited by the scope and effect of individual petitions on a case-by-case basis.

Capitalismo, democracia, cidadania - contradições e insurgências

Article

Full-text available

Nov 2018

Sonia Fleury

RESUMO O objetivo deste ensaio foi discorrer sobre as relações entre capitalismo, democracia e cidadania, tendo como foco as transformações recentes em todos os componentes da tríade Estadonacional, mercado capitalista e cidadania, que caracterizaram a construção da modernidade ocidental e geraram a democracia de massas, o Welfare State - ou Estado de Bem-Estar Social - e o mercado regulado. A globalização da economia levou à desterritorialização da produção e circulação de mercadorias e de capitais, em uma fase de predomínio da lógica de acumulação financeira, dissociando o mercado da dimensão nacional, sob a qual se exerce o poder político estatal. É preciso entender, no entanto, que as tensões entre capitalismo e democracia, e mesmo entre democracia e cidadania, são constitutivas dessa relação, nem sempre sendo contradições antagônicas, pois, em conjunturas específicas, diante das lutas socias e do acúmulo de forças em certas fases do processo de acumulação, pôde-se construir uma nova correlação de forças e viabilizar propostas contra-hegemônicas. A etapa atual deve ser compreendida como parte do acirramento dessas contradições, não como uma situação implacavelmente estagnada. A proposta é pensar, nesta conjuntura, o lugar da democracia e da cidadania.

Regionalism and Health Policy in South America: Tackling Germs, Brokering Norms and Contesting Power

Chapter

Jan 2016

Pia Riggirozzi

Claiming, framing and advancing norms in global governance have often been associated by scholars with power, influence and hegemonic dominance of Northern-based states and non-governmental organizations. The assumption is not surprising, as policymakers and social groups from the developed world have powerful resources to set agendas and act as rule-makers in global politics. However, while this assumption is legitimate on many counts in terms of international policy-making and international relations, it also deserves closer examination. Developments in global governance during the last 15 years have seen how new ambitions and initiatives from Southern regionalism are reworking corridors of norm-making and diffusion affecting in turn North-South and South-South development agendas.

Derechos sociales: Justicia, política y economía en America Latina Bogotá, Pilar Arcidiácono, Nicolás Espejo Yaksic & César Rodríguez Garavito (Coords.), Siglo del Hombre Editores, Bogotá, 2010

Book

Full-text available

Jul 2010

FLEURY, Sonia. Brazil’s health-care reform: social movements and civil society

Data

Full-text available

May 2011

Sonia Fleury

Brazil's health-care reform: social movements and civil society Although health-care reforms need strong social support to be successful, the reform in Brazil is unusual because it was designed fully by militants of the so-called Sanitary Movement 1 about a decade before health care was added to the Brazilian Constitution of 1988 as a citizens' right. 2 The reform was subsequently institutionalised in the 1990s with the formation of a national health system called the Unifi ed Health System (SUS-Sistema Único de Saúde). Originally, the struggle for a new comprehensive model of social protection had a component of social mobilisation in favour of expanding social rights as part of the transition to a democratic regime. The singularity of a social policy project designed by social movements, and the strong association of this project with the transformation of the state and society into a democracy, added some important characteristics to the Brazilian social security system, including pensions, health, and social assistance. The new constitutional model of social policy is characterised by universality of coverage, recognition of social rights, affi rmation of the State's duty, subordination of private practices to regulation on the basis of the public relevance of actions and services in these areas, with a public-oriented approach (instead of a market approach) of co-management by government and society, and with a decentralised arrangement. An important feature of social security in Brazil lies in the component of strong state reform, in redrawing the relations between federal entities and instituting participants, and social control with mechanisms for negotiation and consensus building, which involve muni-ci pal, state, and federal government. The reshaped fed-eralism addresses the main responsibility in the deliv ery of social policies to the local authority. The sys tems of social protection have adopted the format of a decentralised integrated network with a political command and funding at each level of government, with deliberative instances of democracy that would guarantee the equal participation of organised society within these levels (fi gure). The two participatory mechanisms (including health authorities and the population) are the councils and the conferences. The councils exist at every level of the system, and are mechanisms of social control and budget approval that assess executive proposals and performance. The conferences are called on periodically to discuss various subjects, to convey diff erent interests to a common platform and form policy. Although many experts have discussed whether the councils have the capacity to control the government, the conclusion is not clear because of the great diversity in the political capacity of civil society in Brazil, and the unequal distribution of resources among its residents. 3–5 Social participation is regarded as an important component of sustainable health programmes. Brazil is now recognised as a model for mitigating the HIV epidemic because of its policy of universal access to free antiretroviral treatment. 6 This successful prevention policy has been based on public and non-governmental mobilisation, and is supported by international agencies. This pattern of cooperative association is thought to be central to the accomplishment of the programme's goals. 6 Despite this success, because the main feature of Brazilian society is the unequal distribution of power and resources, this challenge is also present in health-care goals, either by the absence of pressure to include neglected diseases in governmental priorities or by the appropriation of participatory mechanisms by more organised groups. The use of social movements to fi ght for positions in the governmental hierarchy in the health sector in the

Medicalization and Social Control

Article

Full-text available

Nov 2003

Peter Conrad

This essay examines the major conceptual issues concerning medicalization and social control, emphasizing studies published on the topic since 1980. Several issues are considered: the emergence, definition, contexts, process, degree, range, consequences, critiques, and future of medicalization and demedicalization. Also discussed are the relation of medicalization and social control, the effect of changes in the medical profession and organization on medicalization, and dilemmas and lacunae in medicalization research.

Citizen’s Income and Welfare Regimes in Latin America From Cash Transfers to Rights: From Cash Transfers to Rights

Book

Jan 2013

Rubén Lo Vuolo

Social protection systems in Latin America developed in a fragmented manner, offering varying access to benefits and benefit levels to population groups. In the context of widespread informal and precarious work, social insurance institutions could only provide limited coverage. In this context, progress toward a Citizen's Income policy in Latin America depends on the possibility of reappraising its importance for an integrated institutional system which promotes the empowerment and economic independence of people. A Citizen's Income policy is not only a cash transfer to alleviate poverty or a basic income for food. It is a basic right to improve democracy and encourage a more autonomous development of people living in profoundly unequal societies.

Institutional Reform and Rights Revolutions in Latin America: The Cases of Costa Rica and Colombia

Article

Aug 2009

Bruce Wilson

This article analyzes the conditions that allowed for expansive rights revolutions in Costa Rica and Colombia. My research suggests that many of the preconditions for rights revolutions in other regions of the world are also central to understanding Latin American cases. Of particular relevance is judicial system design including the high courts’ operating rules concerning access, standing, and judicial formality. These factors can and do mitigate the need for extensive resources and support structures necessary in other non-Latin American countries in which rights revolutions have occurred.

Mexico's targeted and conditional transfers: Between oportunidades and rights

Article

May 2011

P. Yanes

Oportunidades, Mexico's conditional cash transfer programme, which is linked to the education of children of a certain age and provision of health services, is often described as an outstanding success. In 2011 it will cover 5.8 million families. But Oportunidades warrants a critical analysis for its "conditions" deny any autonomy to the poor and the scheme is based on a system of rewards and punishment which assumes that the poor do not know what they want. Its record in reducing income poverty has also been limited. More can be learnt from recent modifications that cover the hitherto excluded, the very young children and the senior citizens. However, it is new proposals of a basic income transfer - universal, to individuals and without conditions - that hold out more promise.

Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World

Book

Jan 2008

This book is a first-of-its-kind, five-country empirical study of the causes and consequences of social and economic rights litigation. Detailed studies of Brazil, India, Indonesia, Nigeria, and South Africa present systematic and nuanced accounts of court activity on social and economic rights in each country. The book develops new methodologies for analyzing the sources of and variation in social and economic rights litigation, explains why actors are now turning to the courts to enforce social and economic rights, measures the aggregate impact of litigation in each country, and assesses the relevance of the empirical findings for legal theory. This book argues that courts can advance social and economic rights under the right conditions precisely because they are never fully independent of political pressures. © Cambridge University Press 2008 and Cambridge University Press, 2009.

Access to health care

Article

Jun 1991

D. K.

Spheres Of Justice: A Defense of Pluralism and Equality

Article

Mar 1984

Litigating Health Rights: Can Courts Bring More Justice to Health?

Conference Paper

Nov 2013

Alicia Ely Yamin

Background: Beginning with HIV/AIDS cases, the last fifteen years have seen a tremendous growth in the number of health rights cases. Yet questions still persist as to when and how litigation can lead to greater social justice in health and enhance the functioning of health systems, rather than distorting practices. In a number of countries, courts are in effect setting health policy and shaping funding priorities. Yet, little systematic attention has been paid to the equity implications of this litigation. Purpose: Based on a comprehensive study of litigation in Argentina, Brazil, Costa Rica, Colombia, India and South Africa, this presentation will trace the beginnings of health rights litigation; will review factors leading to judicial activism in health around the world; will stress the importance of differentiating contexts and kinds of interventions; and will discuss different methodologies for measuring impacts of litigation. Conclusions: Health rights litigation is extremely varied around the world. Factors that must be considered in assessing equity implications relate to the legal opportunity structure as well as other dimensions of the legal system, the organization of the health system, and the way in which the executive branch responds to judicial decisions.

FLEURY, S. et al. Right to health in Latin America: beyond universalization.

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