Paul Brown, MD Jorge A. Díaz RQF MSc

University of North Carolina, Chapel Hill, USA. University of Auckland (New Zealand) pm_brown@unc.edu

Profesor asociado Departamento de Farmacia Universidad Nacional de Colombia

Despite making considerable strides towards providing health care coverage to all its citizens (1-3). Colombia’s health care system is facing a crisis. Concerns have been raised about the equity of the system and whether the POSS and POS are providing essential care. This was, in part, the rationale behind the 2008 ruling by the Supreme Court (T760) stating that the POS and the POSS must offer the same level of care and that the government must fund the additional benefits (a ruling that is estimated to cost the government around 800 billion pesos). Faced with the prospect of either paying for additional services or re-organizing the health care system, the government proposed that individuals who needed high cost services use their savings, retirement pensions, and severance pays to cover the cost of such services. The proposed changes were widely unpopular and subsequently withdrawn. The government is currently pondering its next move, including increasing the taxes on alcoholic drinks, cigarettes, and gambling.

Concerns about the equity of healthcare provision exist in other countries with social health insurance systems (whereby health care is financed by earnings related contributions) (4,5). In theory, one benefit of a social health insurance scheme over other types of systems (such as the government running hospitals and hiring doctors) is that the competition between insurance companies will help contain health care costs and promote efficiency. But allowing competition means allowing people the freedom to purchase the coverage that reflects their needs and desires. For some, this might mean purchasing more coverage for specific types of conditions (e.g., a person with a family history of diabetes might want more prevention services), while others might want more coverage for elective treatments. It could also mean purchasing better facilities in hospitals or more amenities (e.g., single rooms or more comfortable beds), for health care also has elements of a ‘luxury’ good as well (just as some people purchase expensive luxury cars with more features than standard cars). The end result of allowing consumer choice is that there is likely to be inequitable healthcare coverage.

Although inequitable access might be an unavoidable feature of a social health insurance scheme, governments still have a responsibility to ensure that all insurance packages contain an ‘essential’ level of care and to finance ‘essential’ care for those who cannot afford it. The Courts can settle coverage disputes, but typically leave the issue of determining the package of essential care to the government and political process. Thus, the insertion of the Colombian Courts in determining essential coverage and requiring government financing is unique. While understandable on human rights and equity considerations, it adds a level of complication to the social health insurance system not present in other systems around the world (6). In essence, the Courts are deciding how resources will be prioritized, with successful tutelas leading to expansion of coverage on a case-by-case basis. Making coverage decisions on a case-by-case basis rather than at a population level (as governments do) complicates the process of prioritizing health care purchasing. If the courts are not using a universal standard for determining coverage, then it might mean substituting one type of inequity (POS vs. POSS) for another (access to sympathetic judges or not).

The problem facing the Colombia Government and the Courts is how to identify or define ‘essential’ or minimally acceptable level of healthcare. For instance, one option is for the courts to say that all people should enough health care to make them ‘healthy.’ While this might be appropriate for certain types of conditions (e.g., everyone has a right to be free of TB), it is not practical when applied to people at different ages and co-morbidities (e.g., should an 80 year old male keep getting health care until he can run as far as a healthy 18 year old?). There is no standard of ‘perfect health’ (as pointed out by Rene Dubos (7) over 50 years ago), so ‘health status’ cannot be universally applied to determine what is ‘essential care’.

Another option (and one that the Court’s have used) is to compare the benefits offered by the POSS scheme to those offered by the POS. As mentioned above, one of the benefits of the POS is that is allows individuals to purchase health care in accordance with their income, including amenities and non-essential services. It is difficult to say how much of the additional benefits offered by the POS relative to the POSS are for amenities, but there is likely to be some non ‘essential’ services. Thus, using the POS as the standard of comparison for the POSS may mean that too many resources are going toward health at the expense of other areas (e.g., housing, security, or transportation).

On the other hand, there is reason to suspect that the Court’s insertion into determining benefits may even limit amount of essential care offered by the POS. If Courts order the government to pay for denials of coverage under the POS, then insurance companies have an incentive to limit the marginal coverage decisions, especially for high priced care, knowing that ultimately the government might end up paying for the care. So using the POS as a standard of comparison does not remove the problem of how to identify ‘essential’ care and may even complicate the problem.

A third option is for the Courts to take on the responsibility of directly identifying what is, and is not, essential care. The most simplistic form that this can take is to use the ‘capacity to benefit’ criteria (a health care procedure should be undertaken if the patient will benefit). While attractive for its simplicity, the capacity to benefit criteria can lead to funding procedures with little benefit but high cost. For instance, both a 40 year old male of working age and an 80 year old female with osteoporosis and diabetes might benefit from a hip replacement, but will the latter benefit ‘enough’ to justify the expense? And is an end-of-life treatment that is very expensive but only extend life for one month ‘worth it’? The answer may be ‘yes’ in all these cases, but there will be examples where the amount of the benefit is outweighed by the cost of the procedure.

The analysis to date on the role of the Courts in deciding on tutelas suggests these are the types of decisions they are facing (2,5). In a middle income country like Colombia, using ‘capacity to benefit’ might quickly bankrupt the health system. It could be said that this is what has been going on in Colombia: The people want health care services as if we were a high income country, but the government would struggle to cover the expense.

The problem of how to prioritize health care will only become more pronounced in the future. Colombia will have an aging population, and with an aging population comes more chronic conditions and cancer. The future treatments for chronic conditions and cancer is to have better treatments and diagnosis, but at a much higher cost. If the Courts continue to intervene by mandating care, then the Colombian government will be faced with the prospect of spending more and more money on treatment for the elderly. No one would deny that treating chronic conditions and cancer is important and should be a high priority for any health system. But in a middle income country such as Colombia, treating all chronic conditions with the latest treatments will either bankrupt the country or take health resources away from other high priority areas, such as children’s health, communicable diseases and AIDS prevention.

Colombia needs a system for identifying the acceptable minimal package of care. This is a complex process that countries around the world have struggled with. The experiences in other countries (8,9), suggests that the acceptability and adequacy of the package depending crucially on the representation of stakeholders in decision-making bodies, the transparency of procedures and the consistency of benefit decisions (10).

One way forward would be to create an independent entity to provide advice to courts, the government and the public regarding health prioritization decisions. The CRES- Regulatory Commission in Health was created to take into consideration the clinical practice guidelines, economic evaluation, and budget impact of treatments and procedures. But as a government agency, the CRES is not seen as independent by the courts and thus not trusted by the people. What is needed is an independent agency that could provide judges with technical-scientific advice to help make their decisions. Currently, judges request the patient's medical records and some technical information, there allowing each judge on a case-by-case basis to determine the prioritization criteria will not lead to consistent or rational decisions at the population level.

This suggests that Colombia needs an independent entity that will be responsible for conducting health technology reviews, conducting focus groups to ensure representation of stakeholders’ views, creating a transparent process and set of procedures, and making recommendations for coverage publicly available. These recommendations of this group need not be binding, for the actual coverage decisions will ultimately remain the responsibility of the government. But they could, in essence, provide the information that Courts would use to determine whether the government is meeting its requirements under its human rights obligations. That is, it would retain the Court’s role in ensuring human rights are enforced while avoiding the problems that are created by the interference of the Courts via the tutelas (including distort pricing and coverage decisions).

The end result is unlikely to be a single package of care for all people. People with more income may still be able to purchase nicer hospitals and private rooms. While this might violate a principle of universal equity (each person has access to the same health care), evidence from around the world suggests countries that try to restrict those who can afford it from getting the care they want (such as tried in Canada) have encountered significant resistance and criticism from their populations. Better to allow those with money to purchase the nicer rooms and concentrate instead on trying to increase the coverage of those without sufficient income.

The result would be that the minimum level of ‘essential care’ that all people would have access (via either the POS or POSS) would be determined in a rational and transparent method that was accepted by the public. The tutelas have been an avenue for people to get access to denied health care, so what is being advocated for here is a more rational way of determining what this level would be. The political pressures created by people not receiving coverage should not be ignored, but should be a spur to a more reasonable debate and system of making decisions about health care. But the continued use of the tutelas is not a long term solution. It is likely to result in more expensive care being provided to fewer people, at the detriment of more population based approaches that provide better services to a large number of people. This should be the focus in the future if Colombia is going to fulfill its dream of showing the world how to provide good health care to all its peoples.

• POS: employee contributed system

• POSS: government sponsored system

• TUTELAS: are legal actions to uphold fundamental rights

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