The right to health, viewed not only as health prevention and treatment but also as man’s need to live in a healthy environment, which is not prejudicial to his psychophysical balance, is ruled by article 32 of the Constitution.
This
right can be traced back to the category of inviolable rights set out by art.
2, since it protects the psychic and physical integrity of each man against
any threat coming from the outside environment, and is defined as the most
important among social rights, since it allows the enjoyment of freedom-related
rights. Indeed “health” does not only represent a paramount right of the individual,
but also a pre-eminent interest of society, which for this purpose provides
for adequate measures aimed at its protection, including those of a preventive
nature.
In this light, the “right to health” concept is not restricted to a right
to therapeutic healthcare treatments, but extends to include the right to
a healthy and unpolluted environment, the use of consumer goods and foodstuffs
that are not harmful or dangerous and working conditions complying with the
safety and hygiene standards prescribed by law. Article 32 of the Constitution
integrates article 38, through which the Constitution maker strengthens the
protection of workers by providing for, in the event of disablement or loss
of the working abilities, a “distinctive” insurance system to cover workers.
Through this system, economic provisions are granted (such as pensions or
indemnities), as well as healthcare services, to support the workers in the
times of greatest need, that is when, owing to a disease, old age, industrial
accident or other causes which are independent of the person’s will, they
are deprived of their only source of income. In the relationship existing
between Constitution and Health, articles 117 and 118, contained in Title
V of Part II, and concerning “Regional, Provincial and Municipal Authorities”,
play a significant role. In connection with the final letter of these articles,
it is almost unnecessary to mention here that these articles were amended
in October 2001, in the procedural perspective concerning “The federal Constitutional
reformation of the State”. Hence the need to conduct a comparative analysis
of the provisions of articles 117 and 118, “before and after” the amendment
carried out as a result of the referendum held on 7 October 2001.
The abrogated article 117 granted to the Regions under ordinary statutes legal
competence only in the fields indicated therein, beyond which the general
competence of the State remained unquestionable. However, also with respect
to these fields, the Regional Authorities did not have an exclusive competence,
because the State prescribed with laws of its own the guiding criteria, that
is the principles the regional legislator has to abide by in drawing up the
laws. Indeed, the expression “concurring legislative power” existed to describe
the regional laws (which were described as detail laws) concurring with the
State laws (described as outline or general policy laws) in ruling certain
sectors. Furthermore, the last comma of the article also granted Regions under
ordinary statutes an implementing legislative competence, that is the power
to issue detail regulations in areas that were already ruled by State laws,
to allow their practical implementation.
The current article 117 redefines the legislative power of the State. The
new provisions revert the previous criterion regulating the repartition of
legislative competences. Indeed, according to the previous constitutional
text, the legislative power of the Regional Authorities was exerted in connection
with a list of subject matters strictly identified by art. 117, which means
that the related power of the State had to be deemed as “central”. With the
reformation of Title V, the exclusive legislative power of the State is the
power exerted in connection with a peremptory list of subject matters (exclusive
competence).
In addition, we need to stress the provision relating to the concurring legislative
power, according to which the State is responsible for issuing outline or
general policy laws, whereas the detail laws are the exclusive competence
of the Regional Authorities (concurring competence). All the other subjects,
not falling within those specifically listed by the concurring competence
provision, and not falling within the exclusive competence of the State, relate
to the exclusive legislating power of the Regional Authorities (residual competence).
The original text of article 118 granted to the Regional Authorities the administrative
function, that is the activity through which the objective identified at a
ruling or policy level is translated into tangible provisions that can impact
the citizens’ life. The administrative competence of Regional Authorities
involved all the areas on which they were acknowledged a legislative power
(including healthcare and hospital assistance), but could also go beyond this,
in the event of a delegation by the State, or else withdraw from the subject
matters of an exclusively local nature, which were entrusted to local authorities.
The letter of the current article 118 decrees the administrative power of
local authorities and introduces for the first time in the Constitution the
principles of subsidiarity, differentiation and adequacy. Based on the subsidiarity
principle, administrative functions are principally granted to the Municipal
Authorities and, only in the event that a joint exertion should be ensured,
can they be assigned to Provincial Authorities, Metropolitan Cities, Regional
Authorities or the State.
The final approval through the vote expressed in the referendum of 7 October
2001 of the constitution reformation law, passed towards the expiry of the
past legislature, has opened a new phase in the process of the federal transformation
of institutions.
As far as Healthcare is concerned, further prescriptive and institutional
acts have recently occurred: - the Government-Regional Authorities agreement
of 8 August 2001 on healthcare expenditure and on the transfer of the related
management and organisational functions to the Regional Authorities; - the
law no. 405 of 19 November 2001 (converting the legislative decree no. 347),
which has adopted some of its fundamental elements; - the new definition of
essential assistance levels, which are supposed to represent the national
“hinge” aimed at maintaining a basic uniformity in the types of healthcare
services supplied by the various Regional Authorities. The agreement of 8
August 2001 sets out further guidelines for the healthcare federalism process.
While the Government has undertaken to significantly increase the national
resources to be granted to healthcare, with the objective of reaching in a
three-year period a percentage close to 6% of GDP, which would allow Italy
to keep pace with the its major European partners, the green light has been
given for a gradual delegation of powers to the Regional Authorities, in connection
with the management of expenditure and of other organisational aspects, including
staff policies, the supply of pharmaceutical assistance, the setup of hospital
enterprises and in general of all the organisational activity within this
sector.
These undertakings have led, first of all, to the Legislative decree no. 347
of 19 September 2001 and to its conversion Law no. 405, ratifying the economic
agreements made in August and introducing new methods for the supply of pharmaceutical
assistance, with broad powers delegated to the Regional Authorities for their
management. Between these two events, the constitutional reformation has taken
place and become effective on 24 October last, with the gazetting of the Law
no 3 dated 18 October 2001. This law, which many view as a moderate interpretation
of federalism, introduces in fact major and relevant innovations in the constitutional
regulations and in the balancing of powers among various institutional levels,
and in particular between the State and the Regional Authorities, acquiring
growing equality in legislative power.
The tool aimed at guaranteeing the uniformity of rights to healthcare among
all Italian citizens, irrespective of the type of healthcare organisation
in charge, has been identified as the essential assistance levels (livelli
essenziali di assistenza - LEA), referred to for the first time in the legislative
decree no. 502/93 and redefined in the so-called “Bindi” reformation; these
levels have found their final general policy law in the same constitutional
reform. According to the original intentions of the legislator, the LEA were
designed to represent a uniform national point of reference for the offer
of healthcare services, both in quantity and in quality terms, and in connection
with preset financial resources. The challenge taken up by the Regional Authorities,
the Agency for Regional Healthcare Services and the Ministry of Health, with
the definition of the new assistance levels follows this guideline.
The related text, finalised in the autumn of 2001, is aimed at meeting the
requirements of this principle, by identifying negative service lists and
optimal therapeutic courses (also through the review of the current DRGs)
for hospital and territorial assistance.
A first opportunity for reviewing the manner through which the Regional Authorities
intend to start the devolution process, in terms of programming and defining
organisational and management models, will be the new regional Healthcare
Plans.
Therefore, there still is a long way to go with regards to the devolution
process, in order to gradually get closer to the objective of safeguarding
equal rights with regards to health protection and healthcare treatments for
the citizens of our country. Many differences found in terms of responding
abilities depend on the organisational differences between one regional healthcare
system and the other, besides those related to operation and innovation abilities.
There is lots of data that could be referred to in this regard, starting from
that relating to bedspace in public and private hospitals, the existence of
modern technologies in such hospitals, staff and staff distribution throughout
the national territory, the sizes of territorial medicine, including both
general practitioners and family paediatricians, healthcare facilities’ renewal
processes and the creation of new facilities in different Italian regions.
Based on the latest measures taken by the Regional Authorities (and above
all the oppressive atmosphere resulting from the recent Bossi proposal on
devolution), there are no positive signals for local healthcare management.
There is no doubt as to the fact that a true regionalist policy should delegate
to Regional Authorities not only the responsibilities associated with expenses,
and hence direct liability for any budget overshooting, but also the possibility
of resorting to their own resources, indispensable utility sources also in
order to fund specific services that the Regional Authorities intend to make
available to citizens. Somehow, federalism is also contradicted by the new
Pharmaceutical Manual, which promises a saving of approximately 10% on the
current pharmaceutical expenditure. For many years it had been thought that
the unity of the country and the granting of equal rights to all citizens
were absolute values; afterwards we realised that differences, as well as
their acknowledgement, also represented a value, and that in a contest such
as the Italian one it would be wrong to standardise everything.
This conviction is the only possible foundation for federalism, but the operating
decision was reached too hastily; in particular, we have not had a debate
as to how to make federalism compatible with the national healthcare system.
In Italy, the local autonomy system seems the result of an electoral jigsaw
puzzle, so to speak, or else of the economic situation, rather than being
an organic political choice. Misunderstandings and inaccuracies are also revealed
by the birth certificate of fiscal federalism, the legislative decree no.
56/2000: based on this document, one may even infer that the State is responsible
for setting out the essential assistance levels, whereas health protection
is a “subject matter” that the State and the local authorities “concur to”.
It is important to prevent federalism from becoming an opportunity for one
or more local authorities to decide to abolish the healthcare service as a
right to health all citizens are entitled to, in order to bind it to the financial
resources of individual citizens. Article 32 should also be interpreted in
connection with the contents of article 13 of the Constitution. It is hardly
necessary to mention here that the first comma of the above mentioned article
states that personal freedom is an inviolable right of the individual, which
the individual is born with and which is therefore acknowledged and protected
by the State, since it “comes before and influences any other right to freedom”.
In this light, it is natural to agree with the statement that “each citizen
should be guaranteed freedom of treatment”, which is expressed by granting
him the right to decide whether to undergo treatment at all and, should this
be the case, which treatment to choose. The freedom of treatment is not the
only right patients are entitled to, but is just the first of a long list
of rights decreed by the Tribunale per i diritti del malato (the Court for
the Patient’s Rights):
- Right to healthcare-related information and documentation. Each citizen is entitled to all the healthcare-related information and documentation he requires, as well as to the obtainment of all the necessary documents required to fully certify his health condition.
- Right to safety. Whoever finds himself in a situation whereby his health is at risk is entitled to obtain all the services required for his condition and is also entitled not to suffer further damage owing to the malfunction of facilities and services.
- Right to time. Each citizen is entitled to receive respect for his time, just as bureaucracy and healthcare workers are. - Right to protection. The Healthcare Service has the duty to offer special protection to every human being who, owing to his health situation, finds himself in a temporary or permanent condition of weakness, by ensuring that he never lacks for whatever reason and at whatever time the assistance he requires.
- Right to certainties. Each citizen is entitled to obtain from the Healthcare Service treatment certainty in terms of space and time, irrespective of the party supplying the services, and not to be the victim of circumstances resulting from professional or organisational conflicts, sudden changes in the regulations, freedom in interpreting laws and circular letters, or different treatments depending on the geographical location.
- Right to trust. Each citizen is entitled to be treated as an individual worthy of trust and not as a possible evader or alleged liar.
- Right to quality. Each citizen is entitled to find in healthcare services operators and facilities aiming at an only objective: his recovery and the improvement of his health condition.
- Right to differences. Each citizen is entitled to the acknowledgement of his distinctiveness resulting from age, sex, nationality, health condition or religion, and hence to receive different treatments depending on the various requirements.
- Right to normality. Each citizen is entitled to be treated without altering his life routine more than required.
- Right to the family. Each family assisting one of its members is entitled to receive from the Healthcare Service the necessary material support.
- Right to decide. Citizens are entitled, based on the information they have available and without prejudice to the rights of medical practitioners, to maintain their own sphere of action with regards to decisions and responsibilities as to their health and life.
- Right to voluntary services, to assistance by profit organisations and to participation. Each citizen is entitled to a healthcare service, whether this is supplied by public or private bodies, in which the existence of voluntary services and of no profit activity is encouraged and the participation of users is guaranteed.
- Right to future. Each citizen, even if doomed by his disease, is entitled to lead the remaining part of his life in a respectable manner, with minimum pain and receiving attention and assistance.
- Right to the reparation of wrongs. Each citizen who suffers a violation is entitled to the reparation of the wrong, as soon as possible and to a suitable extent.
Translated by interpres sas
Daniela
Incutti
Laureanda in Scienze Politiche
presso
Università della Calabria
