Health Care system in Colombia

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César Ernesto Abadı́a-Barrero Department of Anthropology and Human Rights Institute University of Connecticut and Centro de Estudios Sociales Universidad Nacional de Colombia (E-mail: [email protected])

Neoliberal Justice and the Transformation of the Moral: The Privatization of the Right to Health Care in Colombia

Neoliberal reforms have transformed the legislative scope and everyday dynamics around the right to health care from welfare state social contracts to insurance mar- kets administered by transnational financial capital. This article presents experiences of health care–seeking treatment, judicial rulings about the right to health care, and market-based health care legislation in Colombia. When insurance companies deny services, citizens petition the judiciary to issue a writ affirming their right to health care. The judiciary evaluates the finances of all relevant parties to rule whether a service should be provided and who should be responsible for the costs. A 2011 law claimed that citizens who demand, physicians who prescribe, and judges who grant uncovered services use the system’s limited economic resources and undermine the state’s capacity to expand coverage to the poor. This article shows how the consol- idation of neoliberal ideology in health care requires the transformation of moral values around life. [neoliberalism, morality, justice, health care reform, health as a human right]

Starting in the mid-1980s, the International Monetary Fund and the World Bank, the two main international lending agencies, conditioned lending new funds to the majority of Latin American countries on their implementation of structural adjust- ment policies (Iriart et al. 2001). In health, the World Bank argued that the private sector was more efficient than the public sector and that the deep crisis around financing the region’s health care systems was largely attributable to their public administration. The policies that they imposed intended to force the incorporation of foreign financial institutions as administrators of private health insurance mar- kets (Homedes and Ugalde 2005; Iriart et al. 2011; Iriart et al. 2001). Neoliberal, managed care, and market-based health care reforms are all terms that have been used to refer to the legal restructuring that allowed insurance companies to access the country’s social security funds.

Colombia followed World Bank guidelines most closely. Through Law 100 of 1993 (Congreso de la República de Colombia, Diario Oficial 41.148, December

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23, 1993) and subsequent laws and decrees, the health and pension components of the country’s social security system were funneled into mandatory individual health plans incorporated (in many cases with subsidies) into a market made up of compet- ing insurance companies (De Groote et al. 2005; Homedes and Ugalde 2005). This market-based transformation resulted in problems of equity, efficiency, quality, and corruption, which have resulted in significant setbacks in public health indicators (Homedes and Ugalde 2005; Molina et al. 2009; Yepes et al. 2010). The office of the national ombudsman condemned the practice of forcing people to file for writs when providers or insurance companies deny access to treatments, medications, surgeries, and referrals for the diagnosis, treatment, and control of common dis- eases (Ramı́rez 2010). From 1999 to 2012, the judicial system in Colombia received over one million legal filings for the right to receive health care services—known as tutelas, or writs for the protection of constitutional rights—including close to or well over 100,000 per year in 2006–2012 (Defensorı́a del Pueblo 2013). Problems in the health care system result from both lack of coverage and standardized “de facto dis- entitlements” (Lopez 2005), given that over 60% of the legal filings were for legally covered services (Defensorı́a del Pueblo 2013). The existence of enrollment barriers disguised as technical problems (Lopez 2005) and lengthy administrative and legal battles to access guaranteed services corroborate that having health insurance does not guarantee access to care (Abadı́a-Barrero and Oviedo 2009; Arrivillaga et al. 2009).

Access to health care in Colombia reflects a field of power relations between, on the one hand, a fusion of state and corporate interests in a complex bureau- cratic system “buttressed by discourses that emphasize competition, efficiency, and individual choice” (Abadı́a-Barrero and Oviedo 2010; Lamphere 2005:19), and, on the other hand, citizens who must resort to the judiciary to avail themselves of their constitutional right to health care. Insurers argue that their refusal to provide certain services conforms to the law, while patients use the same law to gain access to services denied. In this process, legislation becomes an emblematic vehicle for understanding the social construction of neoliberal justice in health care.

This article aims to underscore that neoliberal form of justice in health care (i.e., individual and institutional moral struggles around what is just, good, or worthy in terms of health care rights) at a moment when market ideology has become a dominant force in global health. At stake is the transformation of a “moral contract” by which social value is assigned to people’s lives depending on affordability and disease patterns. I present an ethnography of this transformation of moral contracts that studies the links among people’s judicial petitions to protect their right to health care, judicial rulings on this matter, and legislation regarding the for-profit health care system in Colombia.

The article links theoretical reflections on political economy with morality to investigate the cultural dynamics of justice in health care. It explores how justice in health care is a social dynamic at the core of people’s demands, judicial rulings, and legal change. I propose looking at justice as a sociocultural construct that allows us to study ideology ethnographically, given that it effectively connects the transformation of the law with the transformation of the moral. In this kind of transformation, it is equally important to explore what is being stressed through language as what is being hidden or made impossible to talk about.

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Neoliberalism and Morality in Health Care

Around the globe, neoliberal reforms have transformed the social contract of the welfare state, particularly around the notion of the public’s right to health. Given the administrative, emotional, and economic challenges that market-based reforms impose on the health care safety net (Lamphere 2005), NGOs and other private sector entities have gained a prominent role in the provision of health care under managed care (Horton et al. 2014). With the exportation of managed care, financial capital represented by insurance companies challenged the consolidated economic power of industrial capital in health care (Iriart et al. 2011).

Several anthropologists have written about how “market ideology and corpo- rate structures are shaping medicine and health care delivery” (Horton et al. 2014; Lamphere 2005; Rylko-Bauer and Farmer 2002:476). Mulligan’s research shows how “market values come to displace competing notions of what is “good” or “right” in health care” (Mulligan 2010:308–309). She argues that quality in health care is not only a technical matter for evaluating the performance of systems, but, more importantly, it is a particular epistemology, a specific way of knowing. The information that is produced in technical public health policy terms, and, I would add, in technical legal terms, is “a knowledge-making practice that creates infor- mation about the health care system and for managing the system in new ways” (Mulligan 2010:309).

Managing for-profit health care systems successfully requires innovative mecha- nisms of population control (Abadı́a-Barrero et al. 2011), including people’s ac- ceptance of market principles. In this historical context, what is crucial is the understanding of the relationship between techniques of governance and the pro- duction of social inequality (i.e., an ideological domination reflected in people’s support for political practices that are antithetical to their interests). According to Fassin (2009), Foucault’s undeveloped concept of a Politics of Life can illuminate how in regulating populations and normalizing societies, moral ideas about the meaning of life and about how life is valued are enforced. An understanding of moral definitions of human life must take into account how history becomes em- bodied, which then illuminates the political tensions that support differential values by which life is organized, represented, and responded to, for example through public policy (Fassin 2007).

Hence, a larger historical framework allows us to see the relationship between moral definitions of life and public policy. This relationship is recreated, challenged, or transformed by people’s actions (such as individual legal claims, group actions, or social mobilization) and by the specific practices of bureaucrats and institutions. For example, Horton describes how health care institutions play a crucial role in elaborating and deploying value-laden conceptions about cultural difference and “deservingness” of public benefits (Horton 2004:473). She argues that only through an analysis that takes into account local and national political–economic contexts is it possible to understand the construction of Mexican immigrants in the United States as financially irresponsible and unworthy of benefits, as opposed to successful and hard-working Cubans.

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This body of literature signals a connection between political economy and the constitution of morality, which can shed light on the workings of neoliberal ideology. Indeed, moral hazard is the foundational idea of health insurance eco- nomics and “the most powerful narrative in American health policy” (Stone 2011:887). Based on laws of supply and demand, it is suggested that people with insurance use more medical care than they would if they were uninsured. Disguised as a technical term, moral hazard “does Herculean moral and ideological work. . . . Moral hazard transforms health insurance from a social hero into a social villain. It transforms the social safety net from a mode of security against danger to the very danger itself” (Stone 2011:887).

Methods

Data in this article stem from a larger ethnographic endeavor around the right to health care in Colombia conducted under a Participatory Action Research (PAR) framework. I am an active member of an NGO called Salud al Derecho, which fights for the effective provision of health as a human right. As a university profes- sor, I serve as an expert whose testimony (Hall 2006) helps further the cause. The methodological challenge of an activist approach to ethnographic inquiry entails being accountable to both the participants in the political process and to academia. While activist research recognizes that “knowledge is produced, in part, through active involvement in the political problem at hand,” those engaged in this kind of work are also aware that their participation requires a careful and systematic anal- ysis of the relevant facet of the political process (Hall 2006:108). This ethnography argues for a politicized view congruent with participation and interaction (Escobar 2000; Victoria et al. 2004).

Salud al Derecho helps citizens navigate the health and judicial systems free of charge. It also coordinates popular education activities and participates in larger advocacy and social mobilization initiatives. I became a member of Salud al Dere- cho in 2006 and helped established its research committee. I initiated a systematic analysis of the legal process while helping people file for writs and follow legal procedures. In addition, I organized the office’s information in a database and con- ducted informal conversations with people who came to the office asking for help. I conducted in-depth interviews to explore their experiences with the health care and judicial systems. Data from the NGO also come from notes, minutes, memos, and recordings of everyday discussions and formal meetings with the director and board members of the association, many of whom are attorneys who help with legal claims and provide expertise on the interpretation of the law. A previous publication describes the results of the systematization of 458 legal actions and 12 semi-structured interviews (Abadı́a-Barrero and Oviedo 2009).

As a university professor, I have organized and been invited to academic forums addressing the status of the right to health care in Colombia. In this context, I have met with like-minded professors and activists to debate relevant news, legislative issues, research reports, and the work of different organizations. Besides the for- mal presentations in paper, visual, or audio formats, data include discussions that preceded or followed the different events. Data and analyses are backed up by a non-systematic and extensive database that I have collected and organized by year.

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This database contains media discussions, newspaper articles, and notes about the status of the right to health care in Colombia.

The results section is divided into two parts, the first of which consists of a case study in which I describe the interactions of a woman named Esperanza with the health care and judicial systems. I highlight this case because it led to several ju- dicial rulings, including one from the Constitutional Court, the most authoritative institution with respect to the moral status of health care law and policy. I also chose it because it exemplifies how the health care system’s market structure frames the arguments for seeking and ruling on justice in health care. As I will explain, Esperanza’s extensive social capital makes this case particularly relevant, given the quality of the argumentation around deservedness and justice in health care. In this sense, the case is not intended to be representative of the majority of the writs that are requested by people with less social capital and have a more straightforward dis- cursive presentation and legal process. The reconstruction of the case corresponds to several conversations I had with Esperanza between 2006 and 2010 and three formal interviews conducted with two graduate students in 2010. The reconstruc- tion of the case is also possible given Esperanza’s well-organized 20-pound bag of documents that she collected over the years. It also includes the careful reading of the legal petitions and rulings (primary archival material) and the finding and organization of relevant rules and regulations (secondary archival material) that are necessary to understand the petitions and the rulings.

The second part of the results section comprises the presentation and analysis of two government health care reform efforts (in 2010 and 2011) that represent how legislative change was implemented for the purpose of keeping the system’s market- based structure. These legal changes also contain language that specifically addresses the threats that petitions for uncovered care present to market hegemony. The analysis of these “techniques of language” allows me to underscore how neoliberal governance responds in moralistic terms. Between 2009 and 2011, I organized one major lecture and made presentations at two academic forums and one political event. Students, researchers, professors, and members of Salud al Derecho have commented extensively on the material, providing an additional source of data and interpretation. In these conversations and presentations, I have stressed the ideological aspects that I see behind legislation and the public debate to better understand how the transformation of the political connects with transformation of the moral.

To avoid repetitions and facilitate a narrative tone, supporting material and interviews, all translated by me, are clearly identified in the text but are not cited each time they appear.

Esperanza

In 2005, Emiliano, a man in his mid-fifties, was starting to enjoy an early retirement. Suddenly, he had such a severe headache that he called his sister Esperanza and said, “Sister, come save my life!” She picked him up and rushed him to a hospital, where doctors diagnosed a massive stroke and conducted two operations to control intracranial bleeding. After three months in an intensive care unit (ICU), Emiliano

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was transferred to a hospital ward. A doctor explained to Esperanza that given his delicate and demanding condition, Emiliano needed 24-hour nursing care, a service that the hospital offered but that was not covered by Emiliano’s health plan. “So, I paid for those first three months [of nursing care] while he was hospitalized,” Esperanza said. Then, she continued,

[in Emiano’s fourth month] the biggest agony starts. The doctor tells me “I’m going to discharge your brother because the EPS [insurance company] is putting a lot of pressure on me to discharge him.” “But doctor,” I said, “where do I take him?” And he said, “That’s not my problem.” My world fell apart. . . .

Following the advice of a close family friend who is a professor of critical care medicine, Esperanza found a bed for Emiliano in a semi-intensive care institution. She started paying for his stay there and for 24-hour nursing care.

Esperanza’s narrative is useful for underscoring the consequences of health care systems organized around individual service packages and administered by for- profit companies. While Emiliano’s emergency neurosurgeries, ICU care, and first months of hospitalization were covered by the health plan, Esperanza had to pay out of pocket for 24-hour nursing care and the semi-intensive care facility because she was his legal guardian. Esperanza’s story also shows how the political debate about the system’s coverage, structure, and financing frame an important part of the discussions and immediate decisions that physicians and family members are forced to make.

Emiliano’s initial treatment was included in the health coverage manual as emer- gency care, which is mandated to be provided to all people when their “life or functionality is compromised and requires prompt attention” (Ministerio de Salud, República de Colombia, Resolution 5261, 1994, p. 3). His initial hospitalization in the ICU also followed what is included in the manual’s Article 29 (Ministerio de Salud, República de Colombia, Resolution 5261, 1994), which describes the conditions and patients that qualify for ICU care. Under “neurological disorder,” the manual includes “hemorrhagic and occlusive cerebrovascular accidents with signs of endocranial hypertension, cerebral edema . . . that . . . offer the possibility of recovery.” Once Emiliano’s condition was categorized as “irreversible,” it no longer matched this description. The manual’s Article 30 lists cases who will not be admitted in the ICU, including “patients with signs of brain death.” Although semi-intensive care units are included in Article 32, they are covered only for burn patients.

Procedures in managed care are reviewed to fit new concepts of “medical ne- cessity” (Wagner 2005) that follow a cost-containment logic rather than treatment requirements established by medical guidelines or clinical assessments. The for-profit logic behind managed care was evident in Emiliano’s case. When the insurance com- pany categorized his case as an uncovered medical need, they were legally released from paying for his continued hospitalization, which included 24-hour nursing care at a semi-intensive institution.

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The Judicialization of Health: Granting Rights or Administering the For-Profit Health Care Business

I couldn’t afford it any more. I asked the EPS to provide the 24-hour nursing care but they said no, that it was [uncovered]. So, I petitioned for a writ, which was approved two weeks later.

Esperanza’s story conveys how navigating the system requires a mastery of its legal, administrative, and business terminology. When a citizen requests that a writ be issued, the assessment of his or her health care needs and the final decision over whether to grant services are transferred to the judiciary. The judicialization of health care policy refers to an “expansion of powers to legislate and enforce laws by the judicial system. [It] represents a transfer of decision-making power from the Executive and Legislative to judges and courts” (Gonçalves and Machado 2010:39).

Law 100 stipulates that citizens have a right to uncovered services only when they prove that they cannot cover the costs. The logic behind this “deserving citizenship” (Horton 2004) is that people with the ability to pay should not receive resources that are reserved for subsidized care, which would be contrary to the system’s “financial solidarity.”1 People who do not initiate legal procedures and those found to have the economic wherewithal to assume associated costs must pay in full for uncovered services. This responsibility is acknowledged with the signing of a promissory note at the time of hospital admission.

To initiate the legal process, people must present the court with proof that a service was requested and denied. This means that claimants must officially petition the EPS to provide the service. The EPS then produces a document, which, over time, has been standardized as a Service Denial Form. On July 21, 2005, Esperanza presented a petition to the EPS asking it to provide indefinite 24-hour nursing care for Emiliano. On the denial form that she received, an administrative employee of the EPS justified the denial and stated that “it is not an activity, intervention, or procedure explicitly considered in the manual. Resolution No. 0561 of 1994, article 18.” In the space under the heading “Alternatives for the user to access the requested health care service and have his/her legal and constitutional rights granted,” the employee wrote “The patient assumes the costs.”

With this document in hand, Esperanza requested the writ, explaining Emil- iano’s clinical situation to the judge and providing the physician’s order for 24-hour nursing care as supporting documentation. The judge initiated an investigation and asked the EPS to clarify why Esperanza was initiating a legal process against them and why she argued that Emiliano’s rights were being violated by not providing the 24-hour nursing care. In response to the judge, a lawyer for the EPS provided additional information and argued that the EPS had not violated the patient’s rights in any way. He explained that the health policy does not cover indefinite 24-hour nursing care, adding that the current medical orders include “home based care ap- propriate to medical needs” and that the institution offered to provide Esperanza with an educational component regarding supportive care, “in which we will teach you, as the person responsible for your relative, and the people to whom you dele- gate his care, the best way to handle his condition at home.” The lawyer provided

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a supporting copy of this memo dated July 26, and went on to tell the judge that what seemed to be happening was that no family member was willing to care for the patient, thus it would be unfair to demand that the EPS assume responsibility for his care. “It is indispensable,” he added, “to establish the minimal civic re- sponsibility of family members to their relative once necessary medical management has been largely granted.” The lawyer concluded by requesting that the judge deny Esperanza’s petition.

Esperanza received a copy of the lawyer’s response and had an opportunity to further advocate for her petition to be approved. She explained how nursing support and occasional home visits are not equivalent to the 24-hour nursing care that his physician had ordered. She also described two clinical complications (a bronchoaspiration and an obstruction of a vesical catheter) to argue that “If these two events had occurred at my house, my brother would have died, which makes it clear that home-based care is not adequate in this case.”

As in Brazil (Biehl et al. 2012), public defenders in Colombia help people with- out income or basic literacy to file for writs, greatly facilitating the use of this legal mechanism. Besides public entities, NGOs and attorneys (pro bono or not) can file for writs. People can file on their own with the help of formats that are available on the Internet. The majority of writs are relatively straightforward and judges gener- ally approve them (Abadı́a-Barrero and Oviedo 2009; Defensorı́a del Pueblo 2013). Nonetheless, it is clear that in judicial investigations regarding most cases, there is an unequal contest between EPS lawyers and citizens who must write convincing medical arguments supported by the law. However, in Esperanza’s case, her social capital played a key role in the legal confrontation: She is a health care professional and a retired university professor with a doctoral degree. Her arguments and evi- dence prompted the judge to rule in her favor; he ordered the EPS to provide the requested 24-hour nursing care, given that its denial, in his words, “indeed affects the physical integrity of the patient and also his peace of mind and that of his nuclear family, which amounts to a lack of acknowledgment of his right to a dignified life and constitutes a violation of his fundamental rights to health and social security” (Writ 2005–0929, 59th Municipal Civil District Court, Bogotá). As in other rulings, though, the writ also protected corporate interests by authorizing the EPS to charge these uncovered costs to a public fund. This has become standard procedure that follows the administrative and economic logic of the system’s structure.

Esperanza further explained the moral and economic burden that results from dealing with the system’s complex requirements. Insurance companies refuse to grant services even when they are covered by the plan or ordered by a writ, requiring people to pay out of pocket.

The system is so complicated, the number of requirements and documents needed to solve any kind of problem [is so great that] you have to follow a labyrinth. The number of offices that the EPSs have come up with and the amount of time you need to spend every step of the way! It’s lines here and lines there. . . . You have to tramitar (do paperwork for) administrative requirements at different windows and in different sections. The supplies in one place, the food in another, the referrals in a different one. It went on and on until I collapsed. I thought I was going to go crazy. There wasn’t enough

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time and I didn’t know what to do. So I asked a cousin who was kind of broke if I could pay him to do all this running around for me.

In managed care, what labor economists call labor shifting corresponds to both the new administrative demands that health care personnel are forced to meet to comply with the insurance company’s payment forms and the “changing position of the customer to one of part-time employee rather than a consumer of services” (Batt 1988, cited in Lamphere 2005:8). This administrative burden adds to caretakers’ emotional, economic, and physical exhaustion and to the uneven conflict between broke and burned out citizens and powerful institutions.

A Second Writ: Justice Has Been Remade

Esperanza comments that in addition to the nursing care and the semi-intensive care unit that she pays for as “direct costs,” her expenses include parking, food, diapers, supplies, a wheel chair, a special mattress, and so on, which are explicitly excluded in the aforementioned manual. Each diaper, Esperanza comments, “is around 2 dollars and you need about 8 in a 24-hour period.” On February 28, 2008, Esperanza decided to file for a second writ to have the system cover the costs of the semi-intensive care unit and the eight daily diapers. After a month of back- and-forth communications with the EPS and a different judge, Esperanza stressed in her new filing the specialized level of care that Emiliano required and provided documentation for all her additional expenses. She demonstrated that her income was insufficient to continue paying out of pocket. She included an official memo from Emiliano’s pension fund, stating that his monthly pension was equivalent to USD $1,320, that his 12.5% monthly contribution to the EPS was worth USD $160, and that 35% of his pension, equal to USD $400, went directly to his son’s education. As his legal guardian, Esperanza was left with an amount that was insufficient to cover the cost of the semi-intensive care unit (equal to about USD $900 per month), and she was forced to pay out of her own monthly pension for the diapers (about USD $480) and additional expenses of about USD $260 per month. After Esperanza filed the required paperwork, there were back and forth arguments between the judge, the EPS lawyers, and her, but the judge denied her claim. This was on July 31, 2008. In his ruling, the judge stated that he was unable to rule in Esperanza’s favor since the medical order was to discharge the patient and that it was the petitioner (Esperanza) herself who “of her own free will considered it necessary to hospitalize her brother, given that she has no time to take care of him.” (Writ 2008–1216, 51st Municipal Civil District Court. Bogotá).

Esperanza appealed the judge’s ruling. When a person appeals a ruling, a superior judge reexamines the case and provides a second ruling. In her appeal, Esperanza argued that:

The judge of the Fifty-first Municipal Civil District Court wrongly understood that the need to keep my brother Emiliano hospitalized in a semi-intensive care unit was the result of my own wishes . . . that it was I who decided that my brother needed the kind of care I described, an assumption that unfortunately prompted him to rule against my petition.

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With this and other arguments, Esperanza hoped that the new ruling would be in her favor. On September 1, 2008, however, she lost for a second time:

What is now evident is that the EPS COMPENSAR R© has not only provided all the services that the patient EMILIANO is entitled to as a result of his affiliation with that institution, but that it has also complied with the writ by providing services that are not included in the Mandatory Health Plan. It has thus protected his fundamental rights by providing comprehensive care appropriate to his pathology, even offering home-based care as well. (Writ 2008–1216, 18th Municipal Civil District Court, Bogotá)

This second ruling illustrates the judiciary’s understanding of caring for the sick as an individual responsibility and its position that the legal responsibility of insurance companies goes so far and no farther. The separation of individual and market responsibilities in health care is presented as a moral judgment on the behavior of both parties. The ruling on the appeal echoes that of the first judge and the EPS attorney when it argues that Esperanza declined to take responsibility for her brother and added the principle of moral hazard when it commented on her unjustified attempt to force the system to pay for what was her own responsibility. With this new ruling, the judge also made a connection between expenses and morality, pointing out that the EPS had already gone beyond its obligations, incurring additional expenses in doing so. In the end, the medical necessity/economic argument of the EPS did not trump Esperanza’s position. I argue that market morality is established as another powerful technology that, as Mulligan argues for quality-of-care indicators (2010), creates realities and influences how the system is managed.

All the Way to the Constitutional Court: Market-driven Justice

Following the advice of her son, who was a law student at the time, Esperanza asked the Constitutional Court (considered the court of last resort for matters regarding the moral basis of citizens’ rights) to review her petition for a writ in the case. The Constitutional Court reviews such petitions only in selected cases, and the court’s rulings are final. On May 7, 2009, magistrate Jorge Palacio ruled in favor of Esperanza. According to the magistrate, the current constitu- tional order “guarantees every person, at the least, access to health care services required for the person’s existential minimum and dignity” (Decision T-320/09. http://www.corteconstitucional.gov.co/relatoria/2009/t-320--09.htm). The magis- trate ruled that the EPS did not assess the patient and that it was clear that the medical orders provided as evidence by Esperanza, even though originating from an out-of-network physician, demonstrated that due to his medical condition, Emiliano required specialized care. Here, the magistrate used a pro hominem argument to rule outside the legal parameters of the system, which dictated that medical orders had to come from network providers.

Nonetheless, in a section discussing the legal grounds for the decision, there was extensive discussion contrasting the idea of health as an individual right with the need to protect the solvency of the system. This reflected the core tension within the judicialization of health care as a structured negotiation between the needs of

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individuals and the social conception of citizenship. By granting goods demanded through individual legal action, the judiciary “interferes in the accomplishment of public choices that were made by the public health manager, regulating consump- tion opportunities according to a concentrating logic” (Gonçalves and Machado 2010:35). The magistrate clarified that when EPSs do not provide services included in the health plan, they violate the fundamental right to health. For uncovered ser- vices, the magistrate explained that Colombian jurisprudence on health established that the system needs to take into account the economic condition of the patient to assess his or her ability to assume the cost of such services without affecting his or her own well-being. After considering extensive calculations based on Esper- anza’s documented expenses and pension income, the magistrate decided that “the costs of [the semi-intensive care unit] would be over half his income. This amount would disproportionately affect a person’s existential minimum. Nonetheless, this does not apply to the cost of diapers or other items that are indispensable for the personal care of the patient, since this cost is not excessive” (Decision T-320/09. http://www.corteconstitucional.gov.co/relatoria/2009/t-320--09.htm).

Thus, cost calculations become prescriptive of the right to health care granted within the system and illustrate how market logic frames the construction of jus- tice. The market structure of the system determines that the entitlements that are part of the right to health care are those that, if paid, would disproportionately affect people’s ability to afford a dignified life, also known as an “existential minimum.”

The Moralizing Role of For-Profit Legislation: Citizens Harm Others when They Demand Too Much Health Care

At the end of 2009, former president Alvaro Uribe (2002–2010)—an emblematic figure known for his rightist politics, high popularity, and alleged involvement with paramilitary death squads—declared a “state of social emergency” in the provision of health care, which allowed him to legislate by decree (i.e., without congressional debate or approval). Early in 2010, the government announced several new decrees, including further cost-controlling limitations to physician autonomy and increasing health care funding through higher taxes and out of pocket payments. The principal decree regarding the social emergency made the following arguments:

Services not included in the Mandatory Health Plan were neither contemplated in Law 100 of 1993 nor submitted for approval in subsequent economic calculations. However, the provision of such medications and services is becoming common practice in an unforeseen and unusual way, threatening the financial equilibrium of the system ... [and] significantly compromising the resources available for insuring the population. This has severely deteriorated the finances of numerous Health Promotion Companies [EPSs] and Service Providing Institutions ... creating a serious risk for the continuity of providing services and the effective provision of the right to life and health. In fact, ... some regulators and agents of the system promote the demanding of services not included in the benefits package without taking

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into consideration criteria of effectiveness, sustainability, cost-efficiency, rationality in the use of resources, or the socio-economic capacity of the patients. (Decree 4975 of 2009. http://www.minsalud.gov.co/sites/rid/Lists/ BibliotecaDigital/RIDE/DE/DIJ/Decreto%204975%20de%202009.pdf)

Here governmental understanding of unforeseen expenses is framed in terms of the moral hazard implicit in the population’s misuse of the system. EPSs are presented as victims rather than accomplices in the financial crisis. After the decrees were issued, government officials granted numerous interviews and used newspaper columns and other official publications to provide examples of how physicians, judges, and citizens were taking legal action to force the system to pay for “luxurious” and “costly” services. The new law established higher premiums for people who utilized the system’s resources “irresponsibly” or failed to fulfill “the duty of self-care.” This law transferred the financing of excluded services from the public fund to the patient by tapping individual or family assets, pension or severance payments, or individual loans (Decree 128 of 2010. http://www.alcaldiabogota.gov.co/sisjur/normas/Norma1.jsp?i=38663). Clearly, there is a two-fold strategy to stabilize the market by imposing stricter legal limits on what is covered and expanding individual financing of uncovered care.

The principal decree redefines the health plan as covering “low complex- ity care in medicine and dentistry” and conditions the coverage of specialized care on documented evidence of need and the state of the system’s finances. It also orders the control of plan usage through disciplinary measures: “When physicians diverge from [health plan] standards ... and cause economic harm to the system, they will be held liable and sanctioned with fines ranging from an amount equal to 10 to 50 months’ salary at the minimum wage” (Decree 131 of 2010. http://www.acin.org/acin/new/Portals/0/decreto%20131%20de%202010 .pdf).

A technical issue—rather than the massive and sustained social pressure that lasted around three months—prompted the Constitutional Court to declare the state of social emergency and the resulting decrees as unconstitutional (Decision C-252, 2010. http://www.corteconstitucional.gov.co/relatoria/2010/c-252-10.htm). At the end of 2010, Uribe’s former defense minister and newly elected president Juan Manuel Santos presented Congress with new legislation that to a great ex- tent formalized the content of Uribe’s decrees. Despite the same strong influence of moral hazard ideology, the new legislation eliminated some of the provisions that had generated the strongest objections, such as economic sanctions on pro- fessionals and direct threats to individual property and savings. In the document “Statement of Legal Grounds for the Law” (later codified as Law 1438 of 2011), the ministers of health and finance presented Congress with several arguments, including:

It has become necessary to adopt a statute that regulates the right to health care so that access to health care services is equitable and so that the services that a few receive do not imperil or diminish current or future services for the majority of the population or the sustainability of the system. (Statement

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of Legal Grounds for the Law, 2010. http://www.minsalud.gov.co/ Normatividad/PROYECTO%20DE%20LEY%20ESTATUTARIA- %20Exposici%C3%B3n%20de%20motivos.pdf)

In these arguments, market needs conditioned the definition of the right to health care, citizen duties, and state responsibilities. It is clear that the intention was to discipline irresponsible people who wanted the collective to pay for care that they should be paying for themselves. In addition, the ministers of health and finance used previous constitutional court rulings to support this logic: “Given the budgetary limitations that exist at the national level,” legislation must “confer the primacy of guaranteeing the rights of those most in need, given that they generally lack the means indispensable to independently carrying out their life projects in a dignified way” (Statement of Legal Grounds for the Law, 2010. http://www.corteconstitucional.gov.co/relatoria/2008/t-760-08.htm). The ministers concluded: “Legislators’ priority and main task is their duty to establish the scope of the right to healthcare” (Statement of Legal Grounds for the Law, 2010. http://www.minsalud.gov.co/Normatividad/PROYECTO%20DE%20LEY%20- ESTATUTARIA-%20Exposici%C3%B3n%20de%20motivos.pdf).

Since the meaning of economic statistics is contingent on historical and political analyses, data regarding a country’s limited economic resources do more than merely provide empty numbers. Presenting them as irrefutable facts, however, establishes a powerful rhetorical technology that benefits market ideology. Moreover, the text of the proposed law adds another “language technology” for moral domination. The state’s role in eliminating wrongful misuse of the system is justified, given that it impedes the fulfillment of its duty to provide adequate health to all, especially “the poor” and “the vulnerable.” Thus, the law suggests that citizens who bring legal action to demand additional care are morally liable for constricting the present and future rights of their fellow citizens.

The power of legal language must not be overlooked. Legal language, as I have shown, establishes the construct by means of which judges struggle to respond in ways that are considered just, both for individual citizens and the system overall. At the same time, it is incumbent on citizens to conceptualize and express their needs within the possibilities of accepted legal language or pay for alternatives outside of the system.

Under this new legislation, judges will need to consider even more deeply a principle of distributive justice attuned to market logic, since by granting the right to health care to individuals who challenge the system they implicitly harm the most vulnerable. What goes unsaid in this technology of ideological domination, of course, are the exponential profits of insurance companies, their corrupt practices, and the fact that they have no role to play in more efficient and equitable health care systems (Hernández and Tovar 2010; Robledo 2012).

Discussion: Neoliberal Justice and the Transformation of the Moral

The need for people to file legal petitions to protect their right to health care indicates problems in the functioning of a health care system (Abadı́a-Barrero and Oviedo 2009; Biehl et al. 2012). In Brazil, people’s growing use of the judicial system to

Privatization of the Right to Health Care in Colombia 75

demand services can be attributed to unresolved shortages in the unified health system (Biehl et al. 2012) as well as pharmaceutical companies’ efforts to increase their share in global health care markets by conditioning consumers to force public administrators to buy their products (Iriart et al. 2011). Given the time it takes for this legal process to reach a conclusion, it is also emotionally taxing and further compromises the health of the patient. In addition, there is no guaranty that people’s expectations or needs will be matched by judicial findings. The results show how citizens and judges are forced to assess medical needs and arguments around the right to health care in terms of moral hazard, the responsibility of the patient, and budgetary restrictions. While individuals demonstrate their deservedness based on their inability to pay for care, judges calculate caps on how much of the money required for additional services should come from within the system. Interestingly, insurance companies are presented as the targets of complaints, even when a ruling against them authorizes them to charge uncovered care to a public fund, a win–win situation.

Esperanza’s case and an analysis of the 2010–2011 legislation illustrate efforts by the state/corporate fusion (Lamphere 2005) to protect insurance company profits, primarily by establishing limits to coverage and evaluating people’s demands on a moral basis. Nonetheless, the data also show how the judicialization of health care policy in Colombia had begun to threaten the projected profits of financial capital derived from health care services and those of other industrial sectors that profit from the market-based system. The escalating costs of uncovered care, although paid for by individuals and from the public fund, had started to challenge market stability and profit projections based on growing discontent with the system, the burden on the judiciary, and an inability to allocate more resources to the public fund (Ramı́rez 2010).

The last piece of legislation approved in 2011 presents some powerful techniques of language to protect the system’s market structure by controlling the expansion of the right to health care through the judiciary. Tropes such as “the country’s limited resources” and “protecting the system’s finances to guarantee the rights of the most vulnerable sectors of society” can be utilized to create a new social contract around a limited right to health care. This kind of social contract, I argue, would require a transformation of society’s moral values. As others have argued (Horton 2004; Mulligan 2010), these techniques of language are used to begin shifting people’s ideas of rights and entitlements and create new distinctions of self and other in terms of deservedness. If Law 100 constructed a scenario in which rights were pre- sented as a function of deservedness versus finances, the results show how the 2011 legislation points to a debate around the idea of justice in terms of how much social harm is morally acceptable when granting people’s individual petitions. In relation to market ideology in medical care, this research also shows how these techniques of language hide some of the most important reasons for escalating medical expenses from the public debate around justice. The most relevant of these reasons are the immense profits and corrupt practices of insurance companies, rising expenses of the medical industrial complex, and the patents by which pharmaceutical companies ensure years of further profits.

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Altogether, Esperanza’s struggle, the judicial rulings, and changes in legislation illustrate how neoliberalism transforms the dynamics of seeking and winning health care justice in Colombia and the moral compass through which the right to health care is demanded, contested, and won. It is relevant to these ethnographic explo- rations and theoretical debates around justice in health care to understand how life is constantly redefined through history, technology, and capital (Rose 2007; Sunder Rajan 2006). Taking life itself as a conceptual category, or “life as such” in the words of Fassin (2009), requires us to think about the historical construction of judicial rulings over life, and the notions of justice thereby created. But how does the transformation of discourse on justice in health care result in moral frameworks that connect public policy with citizen’s individual and collective experiences? Zigon argues that morality is made up of “discourses articulated by various institutions and public outlets within a society, each of which has varying degrees of power to enforce these discourses. On the other hand, I speak of morality as the embodied dispositions that allow for non-consciously acceptable ways of living in the world.” (Zigon 2010:5). In a similar vein, Fassin thinks that moral issues are about:

adopting, redefining, and contesting norms and values. They analyze the dissemination, appropriation and transformation of sensibilities and sentiments . . . my intention is to underline how moral issues are profoundly entangled within larger social, historical and political issues which are often missed when one singularizes moralities or ethics. Reintroducing history and politics is a major reason for my promoting the concept of moral economy. (Fassin 2011:486, 489)

If moral experience is transformed by larger historical processes, I argue that the historical and political forces that change, shape, and transform the moral in regard to the right to health care in Colombia are those of neoliberalism. In this research, it is possible to see how the forces that shape moral economies go hand in hand with market forces. In the Colombian case, the transformation of the law by capitalist sectors and the judicialization of health care policy connects moral choice in its different scales of social interaction (between patients and insurance companies, between judges and public administrators, and between legislators and the public).

Under neoliberalism, the discourse of health as a human right and the cultural dynamics of justice in health care need to be understood as connecting the moral experience of the individual with the politics of life that define the value of life, understood in both its moral and material worth. In this case, the economic interests of insurance companies expressed in legal discourse are seen as the main ideological expression that redefines the right to life and, consequently, rights in life.

Note

1. “Solidarity of financial contribution” was a new neoliberal indicator created to promote the Colombian health care system as one with excellent performance. This approach, meaning that people with greater resources pay more and thus

Privatization of the Right to Health Care in Colombia 77

subsidize others with fewer resources, was adopted by WHO in its 2000 world health report but was strongly criticized by several scholars.

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