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Table 2 Right to health and pathways to resort the Judiciary for protecting it in Argentina, Brazil, Chile and Colombia

From: Judicialization of access to medicines in four Latin American countries: a comparative qualitative analysis

Right to health Access to medicines Pathways to resort the Judiciary
National Constitution, Article 42 “Consumers and users of goods and services have the right to the protection of their health, safety, and economic interests”.
Each province defines in its Constitution the recognition of the right to health in its territory.
Decree 492/95, Article 1: “The beneficiaries of the agents of the National Health Insurance System, covered by Article 1 of Law No. 23.660, are entitled to receive medical care benefits established in the medical care program to be approved by the Ministry of Health and Social Welfare through the secretary of health policy and health regulations. This program will call the Compulsory Medical Program (PMO) and will be mandatory for all agents set forth above”.
Law 24.754, Article 1. “From within 90 days of enactment of this law, companies or entities that provide prepaid medical services should cover at least in medical care plans the same” Mandatory Medical Plan (PMO) arranged to the Obras Sociales, as established by Law 23.660, 23.661 and 24.455, and their respective regulations.
For the public sector, each province defines its own regulations on the coverage of medicines.
Amparo. It can be brought only to federal, civil and commercial tribunals.
Amparo requires the intervention of a lawyer
National Constitution, Article 196: “Health is a right of all and a duty of the State and shall be guaranteed by means of social and economic policies aimed at reducing the risk of illness and other hazards and at the universal and equal access to actions and services for its promotion, protection and recovery.” Law 8080/1990, Article 6: “… the Unified Health System - SUS also includes in its field of action:
I - the execution of actions: (d) of integrated care, including pharmaceutical assistance”.
Law 12,401/2011, Article 1°
The integral therapeutic assistance referred to in point d of subsection I of art.
6 consists of:
I - dispensing of medicines and products of health interest whose prescription is in accordance with the therapeutic guidelines defined in clinical protocol for the disease or health problem to be treated or, in the absence of the protocol, in accordance with the provisions of Art. 19-P;
Civil lawsuit
It can be filed in any tribunal.
Require the intervention of a lawyer.
It could be individual or collective
National Constitution, Article 19 No. 9: “The right to health protection. The State protects free and equal access to the actions for the promotion, protection and recovery of health and rehabilitation of the individual. It will also be responsible for coordination and control of health-related actions. It is the prime duty of the state is to ensure the implementation of health actions, whether undertaken by public or private institutions, in the form and manner prescribed by law, which may establish compulsory contributions. Every person shall have the right to choose the health care system that wishes to join, be it state or private.” Law N° 19.966, Article 2: The General System of Guarantees shall also contain Explicit Health Guarantees concerning access, quality, financial protection and timeliness of the benefits provision associated with a prioritized set of programs, diseases or health conditions indicated by the corresponding decree. The National Health Fund (FONASA) and the Health Insurance Institutions (ISAPREs) shall mandatorily ensure such guarantees to their respective beneficiaries. Protection resource.
It only can be brought to the Supreme Court.
Require the intervention of a lawyer.
National Constitution, Article 49: “Health care and environmental protection are public services charged to the state. To everyone is guaranteed access to health promotion, protection and recovery. The State organizes, manages and regulates the provision of health services and environmental sanitation to residents according to the principles of efficiency, universality and solidarity.” Law 100/1993, Article 156. “Basic features of the general social security health. The general social security health shall have the following characteristics: (d) All members of the general system of social security health plan will receive a comprehensive health protection, with preventive care, medical-surgical and essential drugs, which will be called mandatory health plan.” Tutela action
It can be brought to any tribunal.
Does not require the intervention of a lawyer