Over the years, the national constitutional framework has been progressively enriched with rules and principles derived from Community law to the point that European law has come to be considered in a new light the right to health.
In particular, , Community legislation has been affected by the changing climate, the declination of new values ??and rights, in tune with the changing horizons of contemporary societies.
In such a perspective, the art deserves attention. 32 of the Constitution, which states: “The Republic safeguards health as a fundamental right of the individual and collective interest, and guarantees free medical care to the indigent. No one can be forced to a specific medical treatment unless required by law. The law may in no case violate the limits imposed by respect for the human person. “
A clear evidence of the importance of this assertion has been reflected in a very large part of contemporary European constitutions and statutes in the same regions that the Italian ‘ have reproduced, by entering the cd protection right to health among the objectives of public interest that regional authorities have to achieve.
Similarly, it appears that the resulting art. 1 of Law no. 833 of 1978, as the law establishing the National Health Service, will reclaim the constitutional formula.
How justified by its very wording, Article. 32 of the Constitution has undergone a slow evolution and different paths of interpretation have marked the approval in the legislative and judicial.
This diversity of argumentative, not only led the applicability of different systems and alternatives, but also led to a opposite evaluative judgment of the constitutional formula pursuant to art. 32, whose ambivalence manifests itself in the assertion that the right to health at the same time is understood as “the fundamental interest of the individual” as well as “collective interest”.
This means that it is a norm through which the settlor intended to give a double meaning to the right to health: on the one hand, it should be considered as an “individual right to protect” and, secondly, as a “general good of collective importance.”
A first significant moment of ripeness art. 32 of the Constitution took place with the judgment of the Court of Cassation no. 796/1973 which qualified the right to health as a real individual right. In other words, the right to health was considered as an “absolute right of primary and of the human person”, with the result that the individual and his right to health began to assume a more central role to the point that the purpose primary outcome was to safeguard the health of all citizens, according to the principles of equality and uniformity, without distinction of classes or personal and social conditions.
Thus, the Supreme Court gave a strong impetus to a new project, certainly ambitious , which made it possible to open up new and unexplored horizons about the provision in question.
Of course, it was the healthcare reform implemented by Law no. 833 of 1978 to be a main point of reference for the definition of the character of the constitutional right to health into Italian.
Occurred after several “bridge laws”, that legislation was called the law of organization, where he dictated the principles, forms planning and programming of health services and the related financing arrangements.
In particular, contributed to the institution of the National Health Service (NHS), through which he was assured the equalization of the position of users of the public health service, well beyond what is required under the laws constitutional. In other words, it was extended the obligation of the state to provide health services and pharmaceuticals to the entire population and not only to the indigent, as provided for the previous health system.
It was a given regulatory highly significant because symptomatic the changing spirit of the times, or more precisely, the transition from a model focused largely on social security, where citizens received assistance only upon the payment of contributions to mutual societies to which they belong, to a system of social security.
goes far beyond a vision of restorative health damage typical of the old insurance system: the law n. 833 of 1978 was intended to “change the conditions of life and work to make the defense of physical and mental health of the population an essential goal of health care reform.”
As argued by prevailing doctrine, in 1978, he envisioned a service public subjectively constructed to provide uniform levels of performance in quality and quantity throughout the country.
is the triumph of the welfare state model, which undermines the matrix Enlightenment – liberal rights of freedom, understood hitherto such subjective public rights, or rights that arise as to the protection of society and politics that are unrelated to civil society.
In fact, it is thanks to the health care reform of 1978 that it was possible to give a concrete and full implementation of art. 32 of the Constitution, which, in fact, according to a universalist logic, enshrines the right to health of all individuals. On this point, he played a leading role in the case law, albeit less recent, the Constitutional Court, which, in keeping in line with the changed orientation, began to outline the right to health as the first of the fundamental rights of the person, such as to merit an unconditional and absolute protection also against the public administration.
Indeed, the construction of the local health department has also had a major impact on the evolution of relations between the various levels of government, where it has been an anticipation of the reforms Bassanini introduced towards the end of the nineties.
As regards, however, the successive reforms that have covered the years 1992 -1999, it must be said that they have anticipated the constitutional reform of Title V of the Constitution of Law n. 3/2001.
Fact, had an impact on the skills of local authorities that make up the Republic.
The reasons which in the early 90s led to a reopening of the issue of the effectiveness of health were represented, respectively from the fiscal crisis of the state and the changes in the public.
This prompted the Legislature to intervene in the national health service, following two guidelines: one concerning the respective powers and the other concerning the relationship between the public and private sectors.
With the 1992 reform implemented by Legislative Decree n. 502 was eliminated the use of legislative procedure and were moved to the head of the Government and the Standing Conference State – Regions aimed at defining the functions of the National Health Plan (NSP). Was kept in the model of planning waterfall (state and regional level) and state control over financial flows, although limited to essential levels of assistance and uniforms.
Regarding the second aspect of the mechanisms of transition between services public and private (as a result of Law 59 of 1997 and Legislative Decree No. 112 of 1998), the Act no. 419 of 1998, which was initiated a process of reform of the health service designed to give new light to the national health planning and aimed at the realization of a full and real regionalization and corporatization.
With this reform is that it has provided a reinterpretation of the tools of interaction between the public and private sectors in health services, both in terms of relationships with individuals who wish to enter the market for health care services or perform activities on behalf of or against the public service, both in terms of the legal nature of parties responsible for ensuring essential levels (think of the USL transformed by local health agencies).
The point has also intervened doctrine, according to which these forms of connection between public and private damage during a process of “outsourcing health services “both at the organizational level and at the level of administrative action.
And it is precisely this form of outsourcing of health services which assumes a central role due to the reform of ’99, since the latter proceeded to both a recovery of programming tools in the number of providers and their activity is a reinterpretation of accreditation as a discretionary act and no longer bound.
In other words, with the Legislative Decree no. 229 of 1999 saw the construction of a new model of the relationship between public and private is no longer oriented to the free competition but to a limited competition scheduled or just to ensure the planning of health services.
In more recent times, the protection of that limited competition has found a valid legal basis in Constitutional Law no. 3 of 2001 and, more specifically, the constitutional principle of horizontal subsidiarity.
It was in 2001 that approved a new legislation with specific reference to the essential levels of assistance (LEA), a concept which dates back to the introduction of the reform measures 1992 and 1999.
What has changed profoundly is the legal nature of the LEA, whereas today they are classified as “a species belonging to the genus of essential levels of performance art. 117, second paragraph, letter. m) of the Constitution. “
More specifically, the Law 405 of 1999, art. 6 introduced a discipline that spin off from the LEA national health planning, assigning to a decree of the President of the Council of Ministers the power to define, on a proposal from the Minister of Health, in consultation with the Minister of Economy and Finance, and after agreement with the State-Regions Conference.
This has led to the majority of commentators believe that it is possible to confer normative LEA being contained in an act lacks such capacity, or the Decree of the President of the Council of Ministers.
Relevant for understanding the normative status of the LEA is the Constitutional Law n. 3 of 2001, where it has constitutionalized the notion of “essential levels of services concerning civil and social rights.”
Then, about a month after this constitutional reform, we proceeded to identify the LEA with DPCM (DPCM November 29 2001).
Subsequently, with the art. 54 of Law 289 of 2002, we proceeded to legificazione of the LEA, giving legislative backing to the choices already made by the Prime Minister’s Decree of 2001.
In subsequent years, moreover, have followed a whole series of measures amending the LEA. Consider, in this regard, the Prime Ministerial Decree of November 28, 2003 on “Defining the basic levels of care in the field of certifications” and, most recently, the dl n. 158 of 2012 art. 5 has provided an update of the LEA.
From this legal framework is clear and easy to deduct the assumption that the constitutional reform of 2001 has made a significant contribution in redefining the framework of relations between the sources regarding the rights constitutionally guaranteed, especially with the introduction of legislative competence on the basic level of benefits.
But it is equally true that the events del’art implementation. 32 of the Constitution show that the exercise of the legislative function has represented, in the model of health, the main road to the transformation of the Italian.
II. The protection of health: the difficult balance between the essential levels of health care and the economic and financial interests.
One of the most problematic aspects is represented by procedures aimed at the definition of the criteria and funding levels of the national health service.
The evolution of the discipline inherent in the financing and costs of the health service shows a strengthening of executive power, which relies on the ability to govern the political processes in the Conference State – Regions and supranational fora.
Not surprisingly, in more recent times, the normative forms that have become more important in the context of decisions on the funding of the health service are those of the decree and the laws and financial stability.
As, however, the accountability measures for the regions in the recruitment of financial resources and the distribution of the same, there are two principles followed: on the one hand, fiscal federalism (as of Legislative Decree No. 446 of 1997) and, secondly, the Stability Pact interior between State and Regions aimed at ensuring compliance with the parameters of the European Financial Stability Facility.
is at the end of the nineties that are identified new interventions aimed at ascertaining the deficit at the regional level and in detail, there is a procedure for the evaluation of levels of care and service management, having the aim to ensure a return to the operating deficit financing and, therefore, greater economic balance – financial support from the regional health services.
This procedure would take place in the Conference State-Regions activated on the proposal of the Minister of Health and conducted on the basis of indicators developed at the state level.
A further step in the process of evolution of the discipline of the financing of the national health service is given by Law 388 of 2000, known as Finance Act of 2001.
This financial art. 83 required the regions to cover operating deficits through taxation, in an amount established in the framework of criteria on which the Minister of Health and Minister of the Treasury had reached an agreement in the State-Regions Conference.
Article. 86, however, introduced mechanisms for monitoring: monitoring the spending of general practitioners and monitoring of prescriptions, drug, specialist and hospital.
Another focal point was then represented by the pharmaceutical expenditure, whereas in 2003 dl n. 269 ??was enacted real reform of the management of the market and the costs for medications. Passage of great importance was the creation of the state of the drug, which has a role as a director in the field of pharmaceutical policies, as it aims to contain pharmaceutical expenditure.
Always a view to containing costs, later with the budget law for 2005 were introduced new measures concerning the system of rewards and sanctions.
system of rewards provided for access to more state resources than those agreed between the State and the Regions, while the sanction mechanisms related cases in which the regions were not going to have control of health care spending that is all those situations in which it is established an operating deficit. And the establishment of the deficit would have resulted in the application of the rules of substitution, which is grounded in the constitutional ‘art. 120, second paragraph of the Constitution.
In particular, should it use a breach of the obligations enshrined in law for the monitoring of expenditure was attributed to the President of the Region of the status of ad acta commissioner for adoption subsequent measures deemed necessary.
However, this discipline has not remained without criticism, particularly regarding the range of powers granted to the President of the Region as Commissioner ad acta commissioner or government.
It is no coincidence that the issue has been a real contrast to doctrinal.
More specifically, the majority doctrine intended to deny the normative character of substitutive powers under Article 120 the Constitution. An intermediate position, however, is another place that orientation has deemed eligible for a replacement legislation, on the assumption that it invokes the principle of subsidiarity, as a criterion representing the backbone of the Reformation. This trend, comes to admit a replacement in breach of the regulatory regions.
Even the constitutional jurisprudence has always highlighted the problematic nature of this aspect emphasizing the relationship between the powers of the ad acta commissioners and regional legislative function (on this point the Court Judgment Cost . n. 361, 2010 and n. 78 of 2011).
In particular, the Constitutional Court stated that the provisions contained in the second paragraph of Art. 120 can not be understood in simplistic terms, ie as a discipline legitimizing the allocation of legislative powers to a person appointed government commissioner, because that would ultimately create a breach of the principle of typical primary legal acts.
A similar mechanism of rewards and sanctions has been taken over in 2006 by Law 296, legislation that has set up a temporary fund for the period 2007-2009 to be distributed among regions with high deficits. This led to the activation of specific mechanisms of so-called repayment plans, which joined most of the Italian regions from 2007 to 2010.
But it is in 2011 that is to be embarked on the process of implementation of the provisions relating to fiscal federalism in the health sector, as contained in the Act no. 42 of 2009.
More precisely, the Legislative Decree n. 68 of 2011 sets out the legal framework of relations between State and Regions for the provision of basic levels of care, known as mentioned in the definition of LEA.
Qualifying traits posed by this legislation are made respectively by the health needs national and regional standards as well as the regional standard cost in the health sector.
In this perspective, an important role is occupied by art. 25, second paragraph, D. Decree no. 68 of 2011.
Not surprisingly, this provision provides that the identification of the national requirement standard must take place in order to ensure the compatibility of such a choice with the public finance constraints and obligations assumed by Italy in the Community .
Another important rule then is art. 26, from 2013, for which the determination of the national standard requirements must be made by agreement, in accordance with the requirements arising from the determination of the essential levels of assistance provided in terms of efficiency and appropriateness.
Of course, the Legislature envisioned a gradual discipline that would guarantee a fair balance between the financing of health care expenditure and ensuring the financial stability of the state.
But there have been criticisms. Indeed, some commentators felt that this legislation is not innovative as it is not able to eliminate the inefficiencies produced by the different regional health systems already in deficit.
Basically, the reason for this inefficiency lies in a very specific circumstance : already the previous reforms of the 90s were asking as its primary goal the overcoming of historical expenditure criterion in the definition of the amount of resources to be allocated to the state funding of regional health services.
Another weak point of Legislative Decree 68 of 2011 reside, also, according to some scholars, in the manner of calculation of standard cost, which would neutralize the choice of the regions of reference and not allow it to affect access to the national standard requirements.
But this technique for calculating the standard cost, indeed, no finality, in fact, from 2014, for the revision of the criteria to be used for the determination of needs regional standards, shall be deemed necessary in Understanding Conference every two years (on this point, so has the art. 29 of Legislative Decree 68/2011).
Of more recent introduction, appears to be, however, the text of the Decree Law no. 95 of 6 July 2012, “Urgent provisions for the review of public spending by invariance of services to citizens”, converted into Law August 7, 2012, n. 135.
The measures contained in these regulations pose as an objective the so-called spending review, which is the reduction or elimination of waste and inefficiencies in public spending in order to promote greater economic growth ..
In particular, in this perspective, it’s interesting art. 15 which fits into the systematic Title III entitled “Streamlining and reduction of health care costs.”
This rule introduces urgent measures to ensure the balance of the health sector, as the reduction in health care spending must be performed in order to ensure compliance with the obligations derived from Community law as well as the achievement of the objectives of public finance.
The current regulatory action, therefore, playing on two fronts: on the one hand, they move in a perspective of continuity with the past orientation ( rationalization of health services and the related financing) and, on the other hand, seem to favor a more protective nature end in terms of service development.
It has become clear that it is a matter of some note to the financial maneuvers of the State, where the strong decentralization has led to the adoption, on the administrative side and regulatory measures aimed at ensuring more and more respect for the planned balances even on a regional basis.
At the same time, it is evident that, over the years, the protection of public health has been affected by the severe constraints that the legislature met in distributing the financial resources of which has.
therefore not always possible to achieve a harmony between the needs of the public finances and the right to health, protected by the Constitution as the scope of the inviolable human dignity.
In fact most of the time shows a real lack of balance between the two sectors, which led, especially in more recent times, the administrative law in favor for solutions and not easy to understand.
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