Recently, President López Obrador has alluded to the fact that he prefers justice over legality, trying to point out that the laws at one time can be unfair.
This can be confusing if you want to put it into practice in the field of medicine, since as the president himself has said, health is a right and not a privilege. However, for this to be applicable, it was necessary to amend article 4 of the Constitution to guarantee the right to protection of people’s health. In other words, the progressive, quantitative and qualitative extension of health services would be guaranteed for comprehensive and free care for people who do not have social security and for this the Law will define a health system for well-being. This could exemplify that in order for something fair to be established and not left to individual interpretations, it is necessary to establish it in a legal framework so that there is the right to demand what has already been established as something fair.
But this in the field of the health system can be something that frequently falls in areas that have their chiaroscuro.
As the health system is divided and health protection is separated between those who have social security and those who do not, this can generate discretionary access to the different treatments depending on the corresponding health coverage. For example, if a type of treatment is given to patients with rights and that for some reason is not available in institutions without rights, then those patients will be deprived of that benefit and this will be legal but not fair. Or vice versa, if the patient is entitled and for different circumstances wants to be treated in hospitals run by Insabi, such as health institutes, the patient is forced to pay the costs of diagnosis, medicines, and supplies that have to be do with his illness.
The costs of treatment for chronic diseases such as cancer have become very expensive, and the Mexican government of past administrations and the current one have tried to make an effort to achieve greater coverage, however, it has clearly been insufficient, since it has not the investment of the percentage of GDP in health recommended by the WHO, which is 6%, has been reached. The average of the OECD countries, where our country is a member, is 8%; and in Mexico, public investment in health from 2010 to 2022 has fluctuated between 2.5 and 2.9% of GDP.
Another detail is when emergency actions have to be carried out, as happened during the pandemic, where quick decisions were required. While it is true that no country really knew the best way to combat the epidemic, each country implemented its measures to the best of their ability. However, the emergency exceeded most health systems. As for Mexico, its government has been seriously questioned whether it initially treated the problem with the seriousness and vigor that the circumstances demanded.
In the evaluations of the first two years of the pandemic, which was the period with the highest mortality, it was observed that private hospitals had lower mortality compared to public services, and much of the explanation was due to the availability of supplies. and medicines, in addition to prompt attention, so in these cases another factor was added that was economic, with which legality and justice were supplanted by this aspect.
Taking into account the above, the investment that Mexico contributes to its health system is much lower than what is recommended. So. What would be the application on what is fair or legal? Because, within the current legal framework, it is obvious that the lack of quality medical care for economic reasons would not be fair or legal.
Now, if we go to the field of prevention and timely detection, such as cancer disorders, there is still more confusion between legality and justice, since a good part of the patients who lack social security coverage have to pay for undergo the studies that lead to their diagnosis and in the case of those who do have coverage, due to delays in appointments, they are also forced to pay for diagnostic procedures, so it is not surprising that patients who care in health institutes can reach up to 50% referrals from the private sector.
In addition, this increases the out-of-pocket spending of the population. In this sense, Mexico is the second OECD country with the highest out-of-pocket spending on health. Thus, according to the Ministry of Finance and Public Credit, in 2019, out-of-pocket spending was 42% and in 2020 it increased to 49%. It must be taken into account that this expense increases according to each population segment, being higher in the elderly.
Another right that may be violated is the vaccination program for children. According to the Mexican Vaccinology Association, global coverage in our country fell by 86 and 83% in 2019 and 2020, respectively, also considering that HPV vaccination left 1.6 million girls without full coverage in 2020. A lot of this deficiency was considered to address the problems of the health emergency. Regarding vaccination for the coronavirus, this was one of the best examples that the right to health can have its guarantees, for example, the way in which it was decided to prioritize vaccination, since in fact there seemed to be been discretionary. For example, in the case of the vaccination of health personnel, where in the end many medical and paramedical personnel from private services were left, and perhaps this is part of the explanation that our country was one of the countries with the highest mortality in this population group. It is difficult to point out specific responsibilities in such an emergency, however, legality and justice were clearly affected in that decision-making, where other types of interests rather prevailed. This shows us how political and economic decisions can affect what can be legal and fair in health, leaving the population in a state of defenselessness.
The news has recently been released that some high-level public officials of this government and their relatives who had Covid, were benefited from drugs such as remdisivir, an antiviral and which has been considered one of the key drugs in the control of the SARS-CoV2 disease. It was mentioned at the time that it could not be administered to the Mexican population in general because it was not approved by COFEPRIS, despite the fact that several health agencies had already approved its use for the treatment of Covid, such as the FDA, which approved it on October 22, 2020. However, officials and relatives close to the government were not limited to this medication. In this sense, another variant that may be above justice and legality is power.
Power is a capacity to act on the will of others. Lawyer Deodato Galindo in his article in the magazine “Vínculos, sociología, análisis y opinión de 2017”, mentions that “Justice is closely linked to the development of power. Our world is not fair because historically the nature of power has not been the pursuit of justice”, and this will help us understand the workings of human nature, as mentioned in Noam Chomsky’s famous debate on power and justice in 1971. and Michael Foucault. The former established that justice was the main criterion for evaluating the use of power and the acts of the government, while Foucault maintained that justice was a social construction and that laws and norms were created by those who had the power to maintain their rule. dominance position.
In conclusion, justice and legality are conditioned not only by the proposals that may be well-intentioned to be considered fair, but without a legal framework these cannot be demanded as a right, however, other variants such as economic aspects and power political can overcome all of the above.
*José Luis Aguilar is a medical oncologist at the National Institute of Cancerology (INCan), with a master’s degree in Direction and Management of Health Institutions, tenured professor of the Biological Therapies course; He has been the representative for Mexico of the cooperative group SWOG (South West Oncology Group). Currently in the dissemination project: Science, politics, economy and medicine.
