Titularidad del derecho a asistencia sanitaria gratuita a través del sistema nacional de salud. Aseguramiento versus universalidad

Abstract

Factors such as the so-called sanitary tourism, the high rate of immigration or the population aging that Spain suffers, among others, have led to an increase in the demand for health services that has caused the Spanish public health system -the National Health System- to face the great challenge of financing and sustainability, a situation that requires the establishment of effective policies to guarantee an adequate balance and proportionality between the economic elements and the configuration of the right to protect the health of citizens. Faced with this context of unsustainability and the large number of deficiencies in its management detected and highlighted by the Court of Auditors in Report number 937 on the Supervision of the Management of Health Care Benefits regulated inthe Community Regulations and Agreements International Social Security, on March 29th, 2012, the Government proceeded to carry out a structural reform of the health system characterized mainly by a new and more restrictive delimitation of the objective and subjective scope of the right to health benefits. Reform that was carried out through Royal Decree-law 16/2012, of April 20th, of urgent policies to guarantee the sustainability of the National Health System and improve the quality and safety of its benefits, developed later by the Royal Decree 1192/2012, of August 3rd, which regulates the status of insured and beneficiary for the purposes of health care in Spain, charged to public funds, through the National Health System, and which was the subject of numerous criticisms from different sectors of the scientific community, society, political institutions and international organizations, especially regarding the subjective field, considering that the new legal framework established by such reforms supposes a restriction and violation of the essential content of the right to the protection of health established in the domestic legal order and the international regulations of which Spain is part, as well as a social regression in the effective protection of health as a basic right. For its part, the subsequent government -of a different political sign- through Royal Decree-Law 7/2018, of July 27th, about universal access to the National Health System, proceeded to repeal the assurance criteria established by the previous norms and reinstated a system based on criteria of universality. This situation highlights the division and controversy between those who consider it necessary to establish an insurance system as a measure to save health spending and those who defend the supremacy of the right to health protection over any economic element and / or saving. A scenario that questions whether the policies carried out on the National Health System truly respond to the achievement of proper management on it or conversely are the result of the different political ideologies therefore, there would have been the politicization of an aspect as basic to the human being as is health. Given this reality, it is necessary to perform a study and analysis of the content of these reforms. The object of this work is the entitlement to receive free health care, whose most specific objectives are focused on responding to various legal problems about such ownership. Thus, it will try to answer questions such as: What is the scope of the universality principleset by Law 14/1986, of April 25th, General Health? Is it an absolute principle or is it possible to establish limitson it?, Is the existence of an economic crisis a legitimate and sufficient reason to carry out reforms that affect and limit such ownership? Does that imply a violation of the essential content of the right to health and a reduction of the guarantees and protection offered by the Welfare State?. Issues that will be analyzed from the perspective of Human Rights, the international doctrine about prohibition of regressivitysocial rights, and the pronouncements that the Constitutional Court has carried out with respect to the reforms operated by RD-Law 16 / 2012. Also, from the perspective of the effectiveness of the reforms operated by RD-Law 16/2012 to ensure the sustainability of the health system, it will try to respond to questions such as: Are the reforms carried out efficient to ensure sustainability of the National Long-term Health System? Is it possible to carry out a reform of the health system based only on economic elements, without taking into account the repercussion that this can entail from a health perspective? The legal sciencmethodology has been used in this research work. Also, taking into account its object, the health, is also nourished by sources from other disciplines such as health. The results show that the health care rightis not free for all people, being necessary in this sense, to differentiate between the universality of right of access to public health services and universality to the gratuity of their benefits. Universality is only recognized in the first of them.