In Thomas Tsai's World Report (Jan 9, p 109),1 Leonardo Cubillos posits a conflict between a “data-driven process” of health policy making and a right to health enforced by Colombian courts on the basis of individual cases. Although court orders have certainly resulted in the payment of substantial costs, most merely enforced benefits that health maintenance organisations should have been providing under the obligatory insurance plan (Plan Obligatorio de Salud [POS]).

Another substantial part of the Constitutional Court's jurisprudence has clarified grey zones in the ill-defined POS. Furthermore, actors on all sides of the political arena in Colombia concur that the POS was not based on either sound epidemiological evidence or a thorough actuarial analysis; nor did it set out prioritisation of treatments on the basis of cost-effectiveness criteria.

There is no doubt that Colombia's health system now faces a profound crisis. Pursuant to its declaration of a state of emergency in December, 2009, the government has adopted some important stop-gap measures, including injecting more resources into the system. However, the structural reforms called for by the Constitutional Court in judgment T-760/08 still need to be implemented.

T-760/08 called for universal coverage and the unification of the unequal benefits schemes under the POS, both of which had been envisioned in Law 100. Far from ordering equalisation upward, T-760/08 urged a comprehensive, evidence-based, and participatory process to review the contents of the POS. It is imperative for the stability of the system that the government adopt such a process, including ensuring meaningful participation of a broad range of civil society actors.

I declare that I have no conflicts of interest.

Litigating the Right to Health

Jan 2008 - Jan 2012