Article 15. People with epilepsy, their families and communities have the right to be sufficiently informed about the different aspects of their condition, to receive complete and up-to-date information, by all appropriate means, of the rights with which they count.

Article 16. Persons with epilepsy shall be protected from any form of discriminatory, abusive or degrading exploitation and regulation.

Article 17. Legally constituted organizations of people with epilepsy can be consulted on matters related to their rights and obligations; as well as, on the normative developments that are intended to be carried out.

Article 18. The National Government will ensure that people with epilepsy are integrated and can participate in cultural, sporting and recreational activities on an equal footing.

Article 19. The National Government, through the Ministry of Social Protection, will ensure the appropriate training and training of all staff involved in the planning and provision of services and programmes to people with epilepsy.

Article 20. The person with epilepsy who refuses to accept the treatment ordered by the doctor, will not be able to carry out dangerous activities that involve a risk to society.

Article 21. The Health Promotion Entities of the contributory and subsidized regimes, the ARP and the AFP will not be able to deny, in any case, the affiliation to health, occupational risks and pension to the people who suffer epilepsy.

The Health Service (IPS) Institutions, from the second level, must have the means for the diagnosis of epilepsy, such as EEG equipment, laboratory for serum levels, imaging equipment and trained personnel. for diagnosis and treatment. The Epilepsy Centers, which are officially authorized or accredited, will be mandatory institutions for the cases of difficult management or medically untreatable. The health posts will have to send these patients to hospitals and epilepsy centres, after paying the first attention.

Article 22. Those young people who have epilepsy and are economically dependent on their parents will have the right to be beneficiaries of the Health System until this condition changes.

Article 23. The Ministry of Social Protection, in coordination with the Ministry of Education, will design a special programme to train general practitioners and teaching staff in early detection of symptoms that can lead to neurological disease among them epilepsy.

CHAPTER IV

Surveillance and control

Article 24. In the event of a violation of the prohibitions defined in this law, the competent authorities shall impose administrative, criminal or disciplinary penalties to be imposed, without prejudice to liability for damages. originated in the physical and psychological health of the person suffering from epilepsy and his or her family members.

Article 25. The health authority of the respective jurisdiction shall comply with its own functions of prevention, inspection, surveillance and control for the due respect of the object of this law.

Article 26. Epidemiological Surveillance. The National Government will establish policies to ensure the recording and reporting of epilepsy cases to any entity, institution or similar that make the diagnosis to establish control and monitoring statistics.

Article 27 This law governs from the date of its enactment and repeals any provisions that are contrary to it. "

The President of the honorable Senate of the Republic,

Hernán Francisco Andrade Serrano.

The Secretary General of the honorable Senate of the Republic,

Emilio Ramon Otero Dajud.

The President of the honorable House of Representatives,

German Varon Cotrino.

The Secretary General of the honorable House of Representatives,

Jesus Alfonso Rodriguez Camargo.

II. GOVERNMENT OBJECTIONS

By communication of 27 July 2009, the government returned to the Congress of the Republic, without the corresponding executive sanction, the draft law of the reference, with objections for inconvenience and unconstitutionality.

1. Preliminary consideration

An initial review of the letter of objections allows to establish that the questions of constitutionality that the government presents in front of the Bill of Law number 028 of 2007 Senate, 341 of 2008 Chamber, establish special protective measures for people suffering from epilepsy, principles and guidelines for their integral caredictated, are structured, in good measure, from the guidelines and the orders given by the Court Constitutional in Case T-760 of 2008, to deal with the failures of regulation of the General System of Social Security in Health. In this context, the objections revolve around the consideration that the objecting law introduces an isolated modification of the normative structure of health care, which has been conceived as a system, based on the provisions of Law 100. of 1993 and of its amendments, in particular those contained in Law 1122 of 2007.

For the purposes of expositional clarity and argumentative coherence, each of the objections and arguments formulated, as follows, will be subdivided into acapites:

Objection founded on violation of the principle of unit of matter

The draft law is, in the opinion of the National Government, vitiated by the lack of a unit of matter_[5], as it introduces a series of rules that, at the moment, break the conception and structure of the General System of Social Security in Health, in particular, regarding definition of pathologies and the phases of prevention and comprehensive care of the disease, (ii) the allocation of competencies to organisms of the General System of Social Security in Health, and (iii) (a) taxation of public health services (PSUR) and liability institutions (PSUR) of charges and liabilities not provided for under the ordinary scheme and which do not make part of the calculation of the UPC in both schemes.

On the other hand, for the government, the project adds elements that are far from being characteristic of the dynamics of the Health System, such as the guarantee and attention of recreation, culture, sport and other spheres concerning the life of the persons suffering from epilepsy, as well as incorporating faculties of the exclusive spring of administrative sectors, which exceed the current conception of compulsory insurance and the provision of health services included in the various plans of benefits_[6].

Thus, the Government believes that the fact that the aforementioned bill integrates various thematic nuclei for the benefit of the integral care of people diagnosed with epilepsy, in practice, involves a negative impact. on the structure and functioning of the General System of Social Security in Health.

After some theoretical considerations on the principle of unity of matter in the light of the constitutional jurisprudence, the Government points out that the lack of normative unity of the project is warned in the fact that it combines thematic nuclei that, while they orbit around the integral care of people diagnosed with epilepsy, have diverse institutional implications and treatments, including, for example, education, but that in the project only affect and impact the structure and functioning of the General System of Social Security in Health. All of this, in the government's view, rivals the systemic conception that has guided the legislator from the Law 100 of 1993 and its reforms and (...) introduces a 'neglect' in the field of competences assigned to each of the regulatory organizations or participants of the System and endangers the UPC-POS balance. "

1.2. The principles of the Social Security System in Health: its balance and sustainability.

In the letter of objections, the government warns that it is not its intention to call into question the legislator's wide margin of configuration in relation to the health service, but it questions the disjointed manner as, in its concept, has been legislated on such a sensitive subject and which affects the fundamental right to health, introducing isolated modifications to " (...) the competences granted to specialized and technical bodies conceived in a systemic manner by the same legislator, while introducing imbalances between the contents of the POS and the value of the UPC, in addition to the burdens and costs that it orders to assume to the IPS (...) ". For the government, " (...) the introduction of rules in a fragmented way and without consulting actuarial calculations and other studies that They need to adjust the value of the UPC and the national and territorial budgets end by removing the very concept of the system and the institutional structure or the rules of the General System of Social Security in Health (...) ".

Likewise, it is pointed out that the inclusion and prioritization of pathologies in the benefit plans through a law of ordinary nature, case by case, " (...) as well as other mechanisms of data collection with records " is diametrically opposed to the mandate given in Law 1122 of 2007 and to the government's own interest in building a Comprehensive Health Information System, as it is " replace the techniques and methodologies used by the technical and specialized agencies designed by the same legislator, with the functions of defining the benefits to be authorised and included in the POS and performing their cost by means of the respective actuarial calculation. '

For the government, the bill ...] disharmonizes the rules that regulate the General System of Social Security in Health, as it was conceived by the same legislator as a set of articulated principles, rules and practices, which make up a coherent institutional structure and with specialised organisations and functional units, both public and private. "

In the same way, the T-760 judgment of 2008 is brought up, for the purpose of indicating that the draft law objecting ignores the above, insofar as it does not know the definition of priorities in health through participation. citizens and the contents of the benefit plans whose competence was attributed to the Commission on Health Regulation.

Under this perspective, " (...) is not able to go to the mechanism of the fragmented and partial regulation of the right to health and its exercise without impacting the structure and functioning of the General System of Social Security in Health. It is in this sense that the constitutional jurisprudence demands the application of the principle of integrality so that the system does not misfit and loses its consistency and internal mechanisms of coordination. " Earlier, " The source of the imbalance is the partial and fragmented regulation of the right to health, the treatment of patients with certain characteristics or pathologies, as well as the allocation of resources to finance certain pathologies without consulting technical criteria for the definition of priorities in health (including consultation direct to the affected users with these definitions) ".

In the aforementioned terms, it is appropriate to add that the censored bill interferes, not only in the adoption of systemic measures aimed at correcting the system's regulatory failures indicated in the aforementioned statement T-760 de 2008, but also on the materialization of the fundamental right to health and other related prerogatives. Fortunately, the legislator has been compelled to adopt all those regulatory measures in a comprehensive manner and in accordance with a universal vision that covers the entire population. In other words: the structuring of public health policy, it cannot be configured from bills referring only to certain pathologies, since, in any case, the contents of the benefit plans would be which, ex ante, demand due analysis of their relevance and integration in a System with other pathologies, in addition to the respective evaluation of the financing scheme.

Therefore, trying to address the problem of epilepsy in isolation, as has been attempted in other areas of health, such as fetal alcoholism, ocular prostheses, vasectomy, etc., is a clear example of a generalized practice. This is a very important matter for the European Parliament, which has been adopted by the legislator, which brings with it a clear regulatory dispersion. And it is that while it can be agreed with the one regarding the conspicuous need for all pathology to be treated properly and timely in the General System of Social Security in Health, it cannot be lost of sight, however, that the The definition of the contents of the POS, by means of legislation, completely disarticulates the scheme of the Health System_[7].

On that basis, for the government, it would not be appropriate, " (...) to focus attention on certain diseases and to generate preferential treatment for pathologies in front of others, or sectors in front of others that, although it could be justified ", would give rise to a situation from which, all sick or age group would demand effective health care in a preferential way, which, in all cases, would constitute discrimination in favour of a specific group of persons, compared to others whose disease can be perceived as being of equal or greater entity, in legal, medical and financial terms for the System.

The government finally points out in this act that the phenomenon that has been described in the course of the presidential objections ...] could be described as a 'fissure' in the structure and functioning of the system. General of Social Security in Health. " And that this fissure does not imply a mere disarticulation in the very conception of system, but has concrete implications, among which are cited the " ... to generate confusion in the definition of (a) powers, including paragraph 1 of Article 1 of the draft law, to the National Superintendence of Health, an organization established to exercise exclusively the inspection, surveillance and control of the System, within the responsible entities to have the necessary technical, scientific and human resources to provide a multidisciplinary, continuous and permanent management of people suffering from this disease " or the one that has to do with " (...) the construction of the so-called medical doctrine to the extent that they are included in the article 2 of the Draft law the definition of a pathology, in this case epilepsy, which are subject to a scientific scheme and professional dialogue in the construction of definitions, which are also changing according to the findings scientists in the field of medicine. Other definitions such as the principles described in Article 4 of the draft law do not only reproduce the principles that guide the General System of Social Security in Health. "

1.3. Objection concerning the lack of knowledge of the powers conferred on the Commission on Health Regulation (Cres)

The Government is present that Law 1122 of 2007 created the Commission on Health Regulation, special administrative unit with full competence to define and modify, on the basis of technical criteria, the Mandatory Plans Health (POS) that the Health Promoter Entities will guarantee to the affiliates, according to the norms of the contributory and subsidized regimes.

For the government, the bill does not know, both the aforementioned legal attribution and the adoption of the respective technical criteria for the purpose of determining health services and their financing, since it adopts a particular regulation. This is a sector and fragmented that does not know the purpose of the current public health policy, which is, the achievement of universal coverage in the provision of the service.

1.4. Objection based on the participation of users of the General System of Social Security in Health in the decisions that affect them

The Government puts forward that in Case T-760 of 2008 it was decided that, in order to implement a true public health policy, the users of the system should be counted, in order to materialize the precept in the Political Charter, particularly, in what is related to the participation of all in the decisions that affect them (article 2or C. P.).

For the government, the above implies that the State, based on the specific constitutional mandates that encourage the participation of citizens in the decisions that affect them (article 2or 3or C. P.), is required to ensure instances of participation in the setting of priorities, decision making, planning, implementation and evaluation of strategies aimed at improve health. That scheme of participation points out the statement of objections is replicated in the Organic Law of Budget and in the legal reforms introduced to the SGSSS by Law 1122 of 1007.

According to this orientation, as long as there is no democratic element in the process of planning health care, it would be unacceptable to accept that, by other means, public health priorities can be defined, the contents of the different benefit plans and the technical components that, in the end, are some of the aspects that support the system itself.

In contrast to the above, the censored bill introduces several provisions to deal with the population suffering from epilepsy, thus forming a discriminatory treatment with respect to other pathologies and people who are suffering from epilepsy. suffer.

In the government's view, legal stature of the National Public Health Plan and the content of the plan exclude the possibility that the government will define the priorities for health risk care, without regular consultation of the technical components and the structure of the planning process to include health risk care, such as epilepsy, in isolation, fragmented and without consulting the criteria of integrality and financial sustainability of the General Security System Social in Health. "

According to the statement of objections, there is a marked contrast between " (...) the democratic consultation referred to by the Constitutional Court and the consultation of ' legally constituted organisations of [sic] persons with In the case of the 'epilepsy centres', the 'epilepsy centres' in which Article 21 of the same project is dealt with in relation to the treatment of the disease is treated in Article 17 of the draft law. (a) a disease which constitutes discriminatory treatment in respect of decisions to be taken vis-à-vis other conditions and in the face of people suffering from them. This latter provision is particularly in line with medical protocols and guidelines for the treatment of a given pathology and introduces a strange element such as the 'compulsory' concept of a concept from 'epilepsy centres' to which it is refers to the bill in relation to the handling of a patient whose responsibility corresponds according to the rules in force and the case law to the treating physician. "

1.5. Objection related to the violation of the statutory reserve of law: regulation of the exercise of fundamental rights to health and equality

Expresses the government that, as has been defined in recent constitutional jurisprudence, health, however, in principle, as a right of a prestational nature, is constituted in a prerogative of fundamental connotation and alone, because of the "transmutation" that you have suffered. The latter, however, would like the precise contents of the law to be defined, thus being enforceable in favour of those who belong to each of the subsystems-contributory or subsidized-.

As of the above premise, the Government concludes that, as a fundamental, the right to health and the aspects related to its effective exercise, must be regulated by statutory law, as it has been pointed out by constitutional jurisprudence, " (...) the regulation of aspects inherent in the exercise of rights and primarily the one that means the consecration of limits, restrictions, exceptions and prohibitions, in the virtue of which affect the core core of the same, only applicable, in terms of constitutional, through the processing of this kind of law. "

this way, the proposed bill presents a material vice related to the ordinary procedure that was given to a set of norms that regulate the fundamental exercise of health and equality, when the process of a statutory law. In particular, the Government refers to: " (i) Article 3 of the draft law prohibiting the discriminatory treatment of persons diagnosed with or suffering from epilepsy; and (ii) the definition of the scope of protection of the fundamental right to health, incorporating the training of medical and care personnel, recreation, culture and sport, among other aspects, that is, regulating the essential core of the right and setting the scope of its exercise that is apparently too broad and protective, but for this reason it must be the subject of debate and Statutory law with the purpose of legitimizing these limits. "

1.6. Objection founded on the incompatibility of the bill with the objectives and content of the National Public Health

However, it should be noted that after the notification of the aforementioned order, both the Senate of the Republic and the House of Representatives, the For this reason, the Judge Judge, by order of May 10, 2010, ordered to continue the process of reviewing the constitutionality of the presidential objections.

VI. COURT CONSIDERATIONS AND FUNDAMENTALS

1. Competition

The Constitutional Court is competent to decide definitively on the constitutionality of the rules objected to by the National Government, in accordance with the provisions of Article 167 and in the 8 of article 241 of the Policy Letter.

2. The processing of objections to the bill

In settled case law, the Court has specified that the insistence of the chambers, produced in the terms of the Constitution, is a budget of the Court's jurisdiction to decide definitively on the constitutionality of the project. object._[8] Therefore, the study of the constitutionality of a draft law objected to by the President of the Republic not only deals with material matters concerning the reproaches that the National Government presents, but which also includes the analysis of the procedure given to the objections in the light of the constitutional and legal provisions dealing with the_[9].

2.1. Opportunity of objections

The bill objecting to this opportunity contains more than 20 and fewer than 50 articles, which is why, in accordance with the provisions of Article 166 of the Political Constitution, the President of the Republic had a term of ten days to return it with objections, which, according to the constitutional case law,_[10] is counted in full and working days, from the day following that in which the project was received for the corresponding presidential sanction.

The Presidency of the Republic received the aforementioned legislative file on July 10, 2009 and returned it to the Presidency of the Senate of the Republic on July 27 of the same year_[11], which is why the Chamber finds that the Objections of the reference were filed within the intended term for effect by the article 166 Superior.

2.2. Processing of objections and approval of objections

The text of the objections was received in the Senate of the Republic on July 27, 2009.

The Senate and House boards appointed an accidental joint commission charged with conducting the study and issuing the respective concept about presidential objections. The Commission was made up of Senator Manuel Virguez Piraquive and Representative Gloria Stella Diaz.

2.2.1. Procedure in the Senate of the Republic

The publication of the report of substantiation of presidential objections to the draft law of the reference, in the Senate of the Republic, was made at the Congress Gazette number 1265, 2009.

According to the evidence decreed and practiced in this process, the announcement of the vote on the report of the presidential objections was made at the plenary session of the Senate of the Republic of 10 December 2009, as stated in the Minutes number 25, of the same date, published in the Congress Gazette number 25 of 2010:

" On the instructions of the Presidency and in accordance with Legislative Act 01 of 2003, the Secretariat announces the projects to be discussed and approved at the next session:

(...)

Bills with objections report:

(...)

-- Bill No. 028 of 2007 Senate, 341 of 2008 House, by which special measures of protection are established for people suffering from epilepsy, principles and guidelines for their comprehensive care are dictated.

(...)

Being 6:35 p. Mr President, the Presidency is meeting and convening on Monday 14 December 2009 at 3:00 p. m. "

The report of objections was voted and approved at the plenary session of the Senate of the Republic of December 14, 2009, as stated in the Act No. 26 of the same date, published in the Congress Gazette number 26, 2010.

2.2.2. Processing in the House of Representatives

The publication of the presidential objections report to the reference bill, in the House of Representatives, was published in the Congress Gazette number 1278, 2009.

The announcement of the vote on the report of the presidential objections in the House of Representatives was made at the plenary session on 14 December 2009, as stated in the Act number 226, of the same date, published in the i_aj">Congress Gazette number 89, 2009. In that act, the following is read:

" The projects are announced for Tuesday, December 15, or for the next plenary session in which bills or legislative acts are debated.

(...)

Objections Report

Bill 341 of the 2008 House, 028 of 2007 Senate, by which special measures of protection are established for people suffering from epilepsy, principles and guidelines for their comprehensive care are dictated.

(...)

The session is closed and is called for tomorrow at 11:00 a.m. m., Congress in plenary session, and at 1:00 p. m. to continue with the study of the initiatives ".

The report of objections was voted and approved at the next plenary session of the House of Representatives on 15 December 2009, as stated in the Minutes of the same date, published in the i_aj">Congress Gazette number 46 of 2010. The report was approved by the majorities required for the effect.

2.3. The time limit for the Houses ' insistence, as provided for in Article 162 of the Constitution

According to the settled case law of this Corporation, the term of the Chambers to insist on the approval of a bill objected to by the Government cannot exceed the term that the Constitution has expressly set forth. For the formation of the law_[12] and, therefore, the Congress of the Republic must estimate or reject the objections within two legislatures, the first of which will be that "that is taking place at the moment when returns the respective project "_[13].

In the present case, the objections were raised on 27 July 2009, that is to say, with effect in the legislative period between 20 July 2009 and 20 July 2010. After the process of rigor, the Congress of the Republic approved the reports of the committees appointed to substantiate the objections, in the plenary of the House of Representatives on 15 December 2009 and in the plenary of the Senate of the Republic on 14 December of the same year. It is noted, then, that the processing of the objections was completed within the first period of the annotated legislature and, therefore, is in accordance with the provisions of Article 162 of the Political Constitution.

2.4. In this way, it is established that the Congress of the Republic has spoken about the presidential objections within the maximum term of two legislatures and, in addition, has complied with the constitutional requirements for the discussion and approval of the report on presidential objections. Therefore, after the analysis by its formal aspect, the Court passes to analyze the substance of substance.

3. Material examination of objections

3.1. The content of the contested bill

Bill 028 of 2007 Senate-341 of 2008 House, by which special measures of protection are established for people suffering from epilepsy, the principles and guidelines for their comprehensive care are dictated, has as a general objective, as stated in its article 1o, "... to ensure the protection and comprehensive care of people suffering from epilepsy", for which it is available that " (...) of the Social Protection, the Commission of Regulation on Health (Cres) and the Superintendence National of Health, will establish the technical, scientific and human resources necessary to provide a multidisciplinary, continuous and permanent management to the people suffering from this disease " and that " [l] as Entities Health promoters of both regimes, the territorial entities responsible for the care of the uninsured poor population, the emergency regimes, the Institutions of Public and Private Health Services must guarantee the access, opportunity and quality in comprehensive care for the population suffering from epilepsy in the terms defined in the Mandatory Health Plan. "

In this context, the project contains a set of definitions to be taken into account for the application of the law (Article 2) and sets a set of criteria for formulation, adoption, implementation, compliance, evaluation and monitoring. of a comprehensive public policy for people suffering from epilepsy (Article 5).

Among the instruments that the project contemplates for the fulfillment of its objectives, are the responsibility of the Ministry of Social Protection to require all the country's institutions and health institutions, the implementation of comprehensive protection programmes for people with epilepsy (Article 6o); the implementation of outreach programmes, awareness raising and citizen participation in relation to the disease and with the rights of people with epilepsy (Article 7o); the provision of international cooperation strategies to promote treatment In the case of persons with epilepsy (Article 8 (o)), aspects relating to the financing of the activities provided for in the project and a special allocation of responsibilities to the Ministry of Social Protection in relation to persons who do not is affiliated to the SGSSS (Article 9o); the duty of the Cres to include in the benefit plans of the contributory and subsidized systems the treatments that are required for the treatment of epilepsy (article 10); the modification of the provisions on the National Public Health Plan, to include special provisions on studies of the prevalence of epilepsy in Colombia (Article 11); the attribution of new responsibilities to the Ministry of Social Protection for the promotion of specific activities in education, training, assistance scientific, international cooperation and comprehensive care for the vulnerable population (Article 12); a chapter aimed at clarifying the rights and duties of persons with epilepsy (Articles 13 to 23) and a chapter on surveillance and control, which contains the provision of penalties for failure to comply with the provisions of the draft and the government's obligation to establish specific epidemiological surveillance policies.

3.2. General consideration of objections and fixing of their scope

3.2.1. The government divides the objections into seven large acapites: 1. Violation of the principle of unity of matter; 2. Affecting the balance and sustainability of the Social Security System in Health; 3. Institutional imbalances in the definition of the Mandatory Health Plan; 4. Ignorance of the right of users to participate in decisions affecting them in relation to the General System of Social Security in Health; 5. The need for the project to be dealt with as a statutory law; 6. Disknowledge of the objectives and content of the National Health Plan, and 7. Fiscal impact of the project, non-compliance with the Organic Law 819 of 2003 and the principle of equilibrium UPC-POS.

considers the Court that the general study of the previous sets of objections is likely to be brought forward in two different dimensions: On the one hand, the objections that are directed to question the law in general, without referring to aspects The government is also calling into question the specific aspects of the bill, and on the other hand, the objections in which the government is in a marginal way.

In relation to the first type of objections, the Court of Justice, in a preliminary manner, warns that the same ones present the problem of relying on global considerations, which do not allow a real problem of constitutionality to be raised. These objections can be condensed into the consideration according to which the isolated and fragmented regulation of the health service, with one law for each disease, disarticulates the General System of Social Security in Health, generates inefficiencies in the operation of the same, gives rise to problems of coverage and compromises its financial sustainability.

In relation to that first set of objections, generically considered, as it contains approaches, in the substantial, identical to those that were presented in front of the Law Project number 312 of 2008 Senate-90 of 2007 Chamber, , the Court will reiterate the criteria set out in Judgment C-662 of 2009.

However, from that general consideration of objections it is possible to conclude that, although in many cases, the theoretical framework within which the government formulates the objection is wrong, as was evidenced in the judgment. C-662 of 2009, and as it will be stated later, some of the arguments put forward may articulate a different question of constitutionality.

Thus, based on the considerations presented in a dispersed manner by the government in its letter of objections, questions of constitutionality may be identified that deal with (1) the rupture of the systemic unit that the service of (2) the effect of the principle of equality arising from a fragmented regulation which, without valid justification, provides for emergency treatment for persons suffering from epilepsy, in relation to those who are suffering from other pathologies; (3) the existence of a deficit in the provision of the health service that is violative of this right and that it results in contrary to the Constitution the measures that obstruct or hinder the overcoming of this situation, and (4) the forecasts that affect the financial sustainability of the Social Security System in Health.

3.2.2. As has been said, in Case C-662 of 2009, the Court ruled on Presidential Objections to Bill 312 of 2008 Senate, 90 of 2007 Chamber, " Law Sandra Ceballos, for which the actions are established for the comprehensive cancer care in Colombia ", which, in general, have great similarity with which the Court should address this opportunity. In that judgment, a pattern was laid for the exercise of control by the Court in cases such as those considered:

3.2.2.1. On the one hand, the Court draws attention to the fact that, while Article 166 of the Constitution does not set requirements that, from the perspective of its content, must fill the objections This does not imply that, as a budget for a substantive statement by the Constitutional Court, they do not have to " ...with minimum standards of argument that will allow support objective and verifiable opposition between the legislative initiative and the Constitution ... ". For the Corporation, to the extent that, in accordance with the Constitution, the competence to raise objections corresponds to the government, if the government does not present minimum arguments that will withstand the accusation of unconstitutionality, the Court could not, Without knowing the arrangement of powers that the Political Charter provides for the Presidential Objections, it will take on the study with reasons that it adds to the proposals made by the Executive. In this way, when the government objects to an unconstitutionality of a bill, but does not present the necessary sustenance for a problem of constitutionality to be understood, the Court should propose an inhibitory decision.

3.2.2.2. On the other hand, in Case C-662 of 2009 the Court, as a starting point for the analysis of the objections, referred to the wide margin of legislative configuration that follows from the constitutional provisions, in relation to the system General social security in health.

The Court pointed out that, as the case-law has held_[14], what is provided for in article 48 of the Political Constitution assumes that social security has the double connotation of be an inalienable right and at the same time a public service provided under the direction, coordination and control of the State, subject to the principles of efficiency, universality and solidarity, " law ". In accordance with this, Article 49 of the Charter enshrines the right to health care and the obligation of the State to order, direct and regulate the provision of services under the same conditions. guiding principles, "in terms and conditions outlined in the law".

Thus, the Court, which " (...) exists a concrete constitutional forecast, which subjects to the decision of the legislator, the instance par excellence of the democratic representation, the determination of the design of the SGSSS. However, as is the case with any exercise of political power in the Social and Democratic State of Law; that attribution of Congress is not omnimoda, but is subject to limits. "

In the aforementioned judgment, the Constitutional Court established as a rule of law that it would serve as a guideline for the analysis of a good part of the objections raised by the National Government, the consideration according to which " (...) The Congress enjoys, by express constitutional mandate, wide freedom of legislative configuration in terms of defining the content and institutional design of the SGSSS. Consequently, a legislative regulation on the matter will violate the postulates of the Charter when; (i) it does not know the material or substantial limits previously recorded; (ii) it incurs a discriminatory practice that is not covered by a criterion of sufficient reason. These limits, by virtue of their generality, imply that the judgment of constitutionality that the Court has to proceed must be flexible in order to preserve the wide margin to which it was referred. The opposite, that is, to apply a strict analysis on the topic, would lead to consider that there is a single model of definition of the SGSSS, conclusion that contradicts the provisions of the href="policy_constitution_1991_pr001.html#48"> 48 and 49 of the Constitution, which defroted that function, in a prevalent manner, to the legislator ".

3.2.2.3. Finally, the Court warns that the examination of constitutionality at this opportunity, in accordance with the provisions of article 167 C.P., is limited exclusively to the objections The effects of this decision are of res judicata relative to the national government and analyzed in this providence.

3.2.3. Special consideration of objections

3.2.2.1. Matter Unit

Although the government has an objection for violation of the principle of unity of matter and, in order to support it, it refers to the jurisprudence of this Corporation that has defined the profiles of that institution, the truth is that the considerations that In this act, it is not intended to show an infringement of this principle, but rather to question the fact that it has been legislated in isolation, without taking into account a concept of health. systemic management of the health services of Colombia.

Indeed, according to the constitutional jurisprudence, the principle of the unity of matter implies that in every law there must be correspondence between the title and the content of the same, as well as internal connection between the different norms that the integrated. In this way, the Court has said_[15], the Constitution sets out in its article 158 two conditions to the Congress for the exercise of the legislative function, " because it It is essential to define precisely, as required by the Charter, from the very title of the project, what matters will be dealt with when the law is issued, and at the same time it must observe a strict internal relationship, from the point of substantial view, among the rules that will be part of the law, for all of them to be referred to the same matter, which must, of course, correspond to the title of that. "_[16] In this way, the Congress violates the constitutional principle on the unity of matter " when it includes specific canons that, or either [do not] fit within the title that delimits the subject matter of the legislation, or they do not have an internal relationship with the overall content of the article "._[17]

Thus, the Court has said, " (...) to exercise control of constitutionality for violation of the principle of unity of matter must be determined which or the thematic nuclei of a law to infer if a norm It has a specific and objective link with them or if, on the contrary, it gravitates within the law, with no links or reference axes that articulate it in a harmonious way and consistent with the material axes developed by the law. legislator "._[18]

In the present opportunity, the government's arguments are not aimed at showing a lack of internal unity in the bill, or the absence of a connection between the different issues contained in the bill, since censors is that, on the one hand, it contains a series of rules that break with the conception and structure of the General System of Social Security and Health, SGSSS, in relation to aspects of this System, such as the definition of diseases and phases in the prevention and comprehensive care of the disease; the assignment of competencies to bodies of the SGSSS such as the Ministry of Social Protection, the Commission on Health Regulation the CRES, or the National Superintendence of Health and the imposition of unanticipated burdens and liabilities that do not make part of the calculation of the UPC in the contributory and subsidized schemes, to the EPS and to the Institutions of Health Services-IPS. On the other hand, it is censored that the project incorporates aspects other than the SGSSS, such as the guarantee and attention of recreation, culture, sport and other spheres of life of people diagnosed with epilepsy. In addition, it is questioned that the project combines elements that, while related to the dynamics and operation of the SGSSS, such as training and medical practice and scientific and technological development, are the responsibility of sectors. A number of different administrative bodies are involved, which transcend the current concept of compulsory insurance and the provision of health services included in the benefit plans.

As can be seen, the government does not point out that the rules that are part of the bill lack the connection with the title of the law, which is " by which special measures of protection are established for the people who have epilepsy, principles and guidelines for their comprehensive care are given, or of them are outside the general theme contained therein, which are the criteria from which an examination of the unit of matter.

in this way, for the Court, however, the government manifests a charge for violation of the principle of the unity of matter, in reality it presents considerations aimed at showing that the object of the object is to introduce a fracture in the what, as the SGSSS, in its judgment, in accordance with the Constitution, must be systematically regulated.

In addition, the Court should point out that, contrary to the government's approach in its letter of objections, the draft object does not have as its sole focus on health care for people suffering from epilepsy, but rather, in a broader conception, it aims to promote the integral attention of these people, which allows, without disknowing the principle of unity of matter, to be incorporated to the same issues that are developed outside of the SGSSS, among which the promotion of the social inclusion of people with epilepsy or the general reaffirmation of their rights. The questioning of the government would lead to a lack of agreement between some of the contents of the project and the own tasks of the SGSSS, unaware that the scope of the bill is not restricted to that system itself, and without present an argument aimed at establishing the lack of internal coherence between the different thematic content of the legislative initiative.

For the above reasons, the Court will be inhibited to issue a substantive statement regarding the alleged violation of the principle of unity of matter, but will address the matter raised from the perspective in which the government does present considerations of constitutionality and that have to do with the systemic involvement of the social security service in health.

In Case C-662 of 2009, in general, this aspect was noted that of the items 48 and 49 of the Superior It follows that the Constitution gives the Congress the power to define the content of the SGSSS, which implies that the body of democratic representation has the possibility to set different modalities of the organization and the institutional of the health system, subject only to the guidelines established directly in the Constitution and criteria of reasonableness, proportionality and non-discrimination.

Put the Court of the Court that, in relation to the objection that has to do with the isolated regulation of matters affecting the General System of Social Security in Health, " (...) the Executive part of a budget substantial, according to which the fact that the judgment in Case T-760 of 2008 had recognized as valid, from the constitutional perspective, the institutional and competence arrangements provided for in Law 100 of 2003 and Law 1122 of 2007, arises a limitation for the legislator with regard to the regulation of formulas other than the definition of "The content of the SGSSS", which would lead to the draft law objecting, as soon as it departs from that initial legislation, to be violative of the Constitution.

For the Court, however, that objection does not know that, in accordance with the constitutional norms governing the SGSSS, it is up to the legislator, autonomously, to define the content of the same and, therefore, the Congress, by Political and social considerations of convenience, which are typical of parliamentary work, may make changes to the health system. The Court said that "[e] n that sense, the assertion that the above legal norms set a limit for such exercise of the legislative configuration is lacking in support." The Court added that this freedom of legislative configuration, "(...) is not limited by the recognition of the constitutional validity that this Corporation makes of a particular organization model of the SGSSS".

On the basis of the above criteria, the Court concluded that " (i) recognition in a judicial decision of a particular institutional design of the SGSSS is not incompatible with the possibility that the legislator may establish new (ii) the principle of integrality, which is based on rules laid down by the Congress in which it is established; competition of legislative production, there is no constitutional duty to restrict the legislative formulas on the content to the SGSSS only those that stipulate rules for the generality of the population subject of health care; and (iii) the objection raised establishes a false problem of constitutionality that, instead, points to the proper exercise of the powers of appropriation and budget execution, and implementation of public policies, all of which are in charge of the National Government. "

In this way, according to the case law of the Court, the Congress of the Republic, in the light of special circumstances-as in the case of Judgment C-662 of 2009, was the consideration of the need to adopt the measures conducive to To ensure comprehensive care for cancer patients-it can introduce modifications that have an impact on the SGSSS, without it being necessary to advance a comprehensive reform of the same. Thus, in order to build a charge of unconstitutionality for this concept, it is not enough to point out that the legislator has addressed in isolation the regulation of a health aspect in order to affect the structure, the functioning or the content of the SGSSS, it is necessary to show, in a specific way the reasons why this regulation contradicts mandatory rules, or is contrary to the principles of reasonableness, proportionality or equality. In the absence of such reasons, the Court should make an inhibitory decision.

In this opportunity, this statement is reiterated and, therefore, the general charge of affectation of the systematic unit of the health service does not prosper due to the decision of the legislator to issue a regulation aimed specifically at promote the comprehensive care of patients suffering from epilepsy, in so far as such general objection is limited to questioning per se, the fact that the legislator has specifically regulated the attention of the people suffering from epilepsy, but without, at that level, there are any reasons for them, in the terms that the case-law has established, to articulate a charge of unconstitutionality.

However, the Chamber observes that, in its specific contents, this project has peculiarities in relation to that which was the subject of consideration by the Court in Case C-662 of 2009, and which, in the light of the criteria there In the light of the above, it is possible that, in relation to these contents, a different approach will be carried out, on the basis of one-off observations in the statement of objections.

While, according to the constitutional case law, the legislator's broad power of configuration in the field of health allows special laws to be issued in the field of health care, this does not deprive the consideration in accordance with which the health service must be regulated as a system in such a way that the universality of the coverage and the efficiency in its delivery can be guaranteed (C.P. href="policy_constitution_1991_pr001.html#49"> 49).

For the Court, in this context, it would be contrary to these principles, the isolated rules that would not be limited to establishing special provisions in the light of special circumstances, but also introduce in a way decontextualised, forecasts affecting the unit of the system, without sufficient justification. Such regulation would not only be contrary to efficiency, without compromising the mandate of universality, in so far as inefficient services are more expensive, which in turn has an impact on the capacity of the system to expand progressively its coverage until it reaches universality.

This unjustified effect would not only compromise the mandates of universality and efficiency that, according to the Constitution, govern the regulation of the provision of health services, but could also be a violation of the law. the principle of equality, where, without justification, derogation schemes apply to persons suffering from certain pathologies or medical conditions and not to others who might be able to encourage a similar claim.

For the government, this is the case with the first paragraph of Article 9 of the bill, since it empowers the National Government to create an account, the nature and scope of which are not needed, but which would have two types of objectives: On the one hand, develop prevention, research and training activities for the human resource involved in the comprehensive care of the patient with epilepsy, activities that, in strict sense, are not necessarily in charge of the General Security System Social in Health, and which are part of a general purpose, made explicit by the promoters of the initiative, to raise awareness, to the community in general, and to the health service providers in particular, on the particularities presented by epilepsy, as well as to advance in understanding and in the impulse of strategies for the problem. On the other hand, it is intended to ensure the comprehensive and timely medical care of patients with epilepsy, as well as the availability of modern equipment for this purpose, which is in the scope of the SGSS and which immediately raises the Questions about the scope of the standard: Do you replace that forecast with the SGSS, so that the comprehensive care of patients with epilepsy would be done by that account and not with the social security system in health? or does it have a partial scope, so only that which does not cover the system is financed from that account? or, finally, does it allude to a set of activities which, in the field of its competences, must be brought forward by the Ministry to promote the objectives referred to in the standard to be met within the SGSSS?

For the Court, it is clear that, in a comprehensive interpretation of the project, nothing leads to the conclusion that the legislator has sought, for the care of patients with epilepsy, to replace, in whole or in part, the SGSSS. To the extent that this is a mere empowerment to the Government to create a special account, it will cover the integral care of patients with epilepsy, as well as the modern equipment required for this. effect, would imply subtracting these activities from the general framework of the SGSSS, to incorporate them into one whose funding is only possible and in relation to which no resources are identified to deal with the responsibility of the Nation. Certainly that cannot be the scope of the provision, which it does not contemplate, nor the way the Ministry would assume those responsibilities, nor the manner in which they would be articulated with the SGSSS.

In the above terms, for the Court the rule in question can only be interpreted with the scope to consist of an enabling for the government, in the manner that defines the regulation, to establish an account that will be nourished by contributions. private, public or international cooperation, for the prevention and investigation of epilepsy, as well as for the training of the human resource involved in the integral care of the patient with this pathology. In addition, the Ministry, within the scope of its competencies, could finance, with this account, activities aimed at promoting the integral care of patients with epilepsy within the Health Social Security System. as well as the acquisition of specialized equipment for the effect. As such an account would operate outside the General System of Social Security in Health, it is clear that the private contributions provided for in the standard are eminently voluntary.

For the same reasons, for the Court, the provision of Article 9 (2) or Article 9 (2), by virtue of which the attention of persons who are not affiliated with one of the regimes at the time of the diagnosis will be The Office of the National Government, immediately and effectively, through the Ministry of Social Protection, defines the affiliation of the patient, cannot be interpreted in the sense that it subtracts the persons suffering from the epilepsy of the general arrangements under which those who are not affiliated with the General System of Health in the scheme contributive, nor in the subsidized, will have the character of ties and their attention will be in charge of the territorial entities._[19] In an integral reading of the bill, it is necessary to conclude that the attention of the patients with In all its aspects, epilepsy is maintained within the SGSSS, without prejudice to the special responsibility which the law gives to the Ministry of Social Protection, so that, within the scope of its powers, it adopts the measures which are necessary to ensure that those at the time of diagnosis are not affiliated with the SGSSS, receive comprehensive and timely attention through territorial entities.

With the above interpretative clarifications, the Court does not appreciate that the government's observations raise a real problem of unconstitutionality and the objections, at this point, will be declared unfounded.

Nor is the consideration given according to which the project attributes to the Superintendence of Health functions that it does not know its field of competence, not only because it does not derive from it, per se, a problem of It is clear that the reference to the Superintendence must be understood in the general framework of the functions that it is required to fulfill.

2. Affecting the balance and sustainability of the Social Security System in Health

For the government, " (...) while a later law may amend an ordinary law, the fact is that the introduction of rules in a fragmented manner and without consulting actuarial calculations and other studies that They need to adjust the value of the UPC and the national and territorial budgets end by removing the very concept of the system and the institutional structure or the rules of the General System of Social Security in Health. " In its view, the project objected "(...) introduces imbalances between the contents of the POS and the value of the UPC, in addition to the burdens and costs it orders to assume to the IPS".

For the Court, this objection presents problems of adequacy of the position, as soon as the Government, except for a specific case presented in another one of the objections and to which the Court will refer later, does not specify either the way or the concrete provisions of the project that would affect this sustainability. Nor does it explain the reason why the project results in an affectation of the POS-UPC relationship to the provision of Article l0 of the same, in which an express reference is made to the CRES to update the POS in relation to the epilepsy, for which it must take into account the criteria and principles governing the SGSSS.

The Court is thus faced with a global charge, which not only does not specify the reasons for unconstitutionality, but does not appear to be consistent with provisions of the same objectionable project that refer, for the modification of the POS, to an entity whose powers are within the SGSSS. For these reasons the Court will be inhibited in relation to this objection.

3. Institutional imbalances in the definition of the Mandatory Health Plan

As was done in Case C-662 of 2009, in this act the Court will jointly address the objections that have to do with the lack of knowledge of the institutional system that governs in the SGSSS and with the affectation of the objectives of the Plan National Public Health.

3.1. Although they are presented in a scattershot way by the government, in this act they can be grouped together the considerations that revolve around the idea that the project modifies the competences granted to the specialized and technical bodies conceived of systemic manner by the same legislator.

3.2. More specifically, for the government, without knowing the power of legislative configuration, it is necessary to take into account what matters, such as the contents of the POS or the value of the UPC to finance the health services technical complexity and have been delegated by the same legislator to the Commission on Health Regulation, giving it the technical tools and inputs to adopt these decisions according to criteria of reasonableness, complexity and specialty of the material.

In this way, when a pathology is partially regulated, a logical rupture is generated in this rationality, precisely because the regulation, as in this case, would not be developed taking into account a broad panorama that would carry out the reflections. necessary and links between the services and their financing.

3.3. The Government makes similar reasoning, in the sense that Case T-760 of 2008 had recognized the importance of the National Public Health Plan, provided for by Article 33 of Law 1122 of 2007, as a valuable instrument in the search for a coordinated and efficient health system. Consequently, the partial and fragmented nature of the draft law would be contrary to the purposes of the above plan.

3.4. With regard to these objections, it should be noted first of all that the general reference to the mismatch of the institutional framework provided for in the law for the SGSSS is a global charge which, in principle, is not capable of producing a Court fund. However, to the extent that this observation can be brought back to a specific situation, it can be considered by the Court and thus is the case with the attribution to the Ministry of Social Protection of responsibilities and powers that disarticulate the institutional design provided for in the law for the provision of the health service, or the reference, in the same sense, to the Superintendence of Health, and which were the subject of a statement in another section of the providence.

On the other hand, the Court draws the attention of the Court to the fact that the government has objected to the bill for not knowing the powers of the CRES, without specifying which provisions of the law derive that conclusion and without referring to the Article 10 of the project, in which, in an express way, " [l] to the Commission on Health Regulation (CRES) is available must include in the benefits plans of the Contributory Regime and the Subsidized Regime the coverage of epilepsy, by adopting guidelines and protocols to provide for procedures, medicinal products and other health services, which are required for the treatment of this pathology. " This discordance between the meaning of the objection and the content of the project, regardless of what the extent of the mentioned forecast of article 10 of the The Court of Justice held that the Court of Justice held that the Court of Justice held that the Court of Justice held that the Court of Justice held that the Court of Justice held a hearing.

Finally, as stated by the Court in Case C-662 of 2009, these objections incur defects that make it impossible for the Chamber to take a substantive decision on the matter. In that judgment, the Court pointed out that " (...) the Constitution confers the power to the Legislative Assembly to set, within a wide margin of normative configuration, the institutional arrangement that it deems appropriate for the SGSSS. The ordinary rules of repeal and reform of the legal precepts determine that this power of regulation entails the possibility of modifying, eliminating or reconsidering the competences of each of these institutions. Therefore, the Congress is fully empowered to separate itself, if it deems it appropriate, from a certain institutional model that it has designed, in order to meet the needs of a particular social group, to whom it considers worthy of a differentiated treatment. This exercise, as has also been pointed out on several occasions, is limited only to the formal limits and constitutional materials explained above. "

Except in the specific aspects mentioned above, the government does not specify what institutional imbalances the project introduces to the SGSSS, nor does it explain to what extent and for what reasons these are unreasonable or -disproportionate, or overflows of higher-order regulatory frameworks. As stated by the Court, " [t] he general approach of a difference between the institutional framework of the SGSSS and some forecasts, not specified in the project, would lead, not to a problem of confrontation with the Constitution, but with other norms of legal status (...) ", circumstance that he does not know that" (...) the judicial control that the Court makes is limited to compare the legal norm charged with the norms that make up the Charter Politics and those that make up the constitutionality bloc. This control is not preaches to other provisions of an eminently legal ordinary character, since the same ones do not conform a normative parameter suitable for imposing limits or prohibitions on the competence of the legislator. This criterion is maintained, even when such institutional arrangements of legal origin have been found valid by decisions of this jurisdiction, since they also recognize the primeval faculty of the legislative on the matter. Such censures, as demonstrated in the case raised, end related to reasons of political or economic expediency, aspects that prima facie escape the jurisdiction of the Court. "

The Court stated that " [l] as provisions of Law 1122 of 2007, which fix both the existence and functioning of the Commission on Health Regulation - CRES, and the objectives of the National Health Plan Public, they do not set a limit for the exercise of the competence of the legislator as regards the definition of the institutions that make up the health system. However, compliance with the functions of these institutions, of legal strain, should be coordinated with the subsequent provisions of the legislator, which, as in this case, are the subject of specialized care for certain groups of patients. It is therefore up to the Congress, in the terms set out above, to define the institutions and bodies that make up the SGSSS, which is limited by the formal and substantial restrictions before it, as well as the Prohibition of unjustified discrimination between users. These restrictions, as stated insistently in this providence, do not involve prior legislative decisions, as they do not conform to the constitutionality of ordinary laws. "

On the other hand, in relation to the objection that has to do with the contents of the National Public Health Plan, regardless of whether the government makes a global consideration on the subject, without stopping to examine specifically the problems of constitutionality that would pose certain modifications of the same ones, it is possible to refer to the considerations made by the Court in the judgment C-662 of 2009, according to which " (...) cannot be lost of Article 33 of Law 1122 In 2007, the definition of the contents of the National Public Health Plan corresponds to the National Government._[20] Therefore, it is not right to consider, as the presidential objection advocates, that the legislator's broad faculty for determine the contents and the functioning of the SGSSS should be subject to the actions of the Executive, since this would mean not knowing the express constitutional mandates provided for in the articles href="policy_constitution_1991_pr001.html#48"> 48 and 49 Letter (...) ".

For the Court, the above means that the arguments presented by the National Government would lead to a review of the legality of the bill, " ...] Article 167 Superior, a rule that empowers this Court to decide on objections to unconstitutionality. This circumstance prevents the Court from ruling on various matters. " Therefore, as occurred in Judgment C-662 of 2009," (...) the Chamber will be inhibited from adopting a substantive decision on censorship founded on the incompatibility of the project with the competences of the CRES in terms of regulation of the content of the SGSSS and with the forecasts of the National Plan of Public Health ".

4. Ignorance of the right of users to participate in decisions affecting them in relation to the General System of Social Security in Health

The National Government raises this objection in the same terms in which it presented it in front of Bill No. 312 of 2008 Senate, 90 of 2007 House, " Law Sandra Ceballos, for which the actions for the comprehensive cancer care in Colombia ", a matter that was addressed by the Court in Case C-662 of 2009, to whose general considerations it is necessary to refer to this opportunity.

For the Government, however, in Case T-760 of 2008 it was arranged that in the development of the mandate of participation provided for in article 2or of the Constitution, to implement a real Public policy in health, it should be answered with the users of the system, in the draft objecado are established mechanisms to define the priorities of health risk attention, that they do not know the instances of participation provided in the law and that not regularly consult the technical components and the structure of the process planning to include health risk care, such as epilepsy, in isolation, fragmented and without consulting the criteria of integrality and financial sustainability of the General System of Social Security in Health.

As the Court pointed out in Judgment C-662 of 2009, " (...) is evident that the proposed censorship does not meet the minimum conditions necessary to set up an objection of unconstitutionality. In fact, the argument put forward by the executive branch omits to indicate that normative statements of the bill prevent the effective enjoyment of the rights of participation of the users of the SGSSS and the way in which they achieve this alleged objective. On the contrary, it reiterates the argument about the fragmentation of the institutional health care regime of adult patients suffering from cancer, a matter that has already been elucidated in previous paragraphs of this ruling. "

On the other hand, in this act, the Government refers in a timely manner to Article 17 and to a separate article 21 of the draft, which are as follows:

Article 17. Legally constituted organizations of people with epilepsy can be consulted on matters related to their rights and obligations; as well as, on the normative developments that are intended to be carried out.

Article 21.

(...)

The Epilepsy Centers that are officially authorized or accredited, will be mandatory institutions for the cases of difficult management or medically untreatable.

(...)

For the government ... the contrast between the democratic consultation referred to by the Constitutional Court and the consultation of 'legally constituted organisations of [sic] people with epilepsy' referred to in Article 17 of the draft law in the face of the regulation to be established, as well as the compulsory consultation of 'epilepsy centres' in which Article 21 of the same project is dealt with in relation to the treatment of the disease which constitutes discriminatory treatment with regard to the decisions to be taken in the face of other pathologies and in the face of people suffering from them. This latter provision is particularly in line with medical protocols and guidelines for the treatment of a given pathology and introduces a strange element such as the 'compulsory' concept of a concept from 'epilepsy centres' to which it is refers to the bill in relation to the handling of a patient whose responsibility corresponds according to the current rules and the case law to the treating physician. "

The government does not specify how, a provision that empowers competent authorities to consult organizations of people suffering from epilepsy on matters related to their rights and obligations, as well as on the regulatory developments to be carried out, should be taken as contrary to the principle of the involvement of SGSSS users in the decisions affecting them.

Nor is the reason why-nor is it explained by the government-why the referred consultation, as well as the one that, according to the law, must be made to the centers of epilepsy authorized or officially accredited, in relation to the cases They are difficult to manage or medically untreatable, they are discriminatory treatment with respect to decisions taken in front of, other pathologies and in the face of the people who suffer them. This consideration is not only alien to the subject of the participation on which it is concerned apart from the objections of the government, but it raises an issue of equality without being subject to the minimum requirements for the configuration of a position of unconstitutionality in that field.

in fact, the government limits itself to the fact that it is discriminatory that in the case of epilepsy a compulsory consultation is available, in certain circumstances, with specialised centres officially accredited, but does not specify the reason why which, in relation to other pathologies, due to a need for the principle of equality, a similar regulation should be introduced.

Finally, the government suggests that a mandatory consultation with epilepsy centers may be contrary to the autonomy of the treating physician in the management of the patient, but does not structure a charge of unconstitutionality over the particular one.

For the above considerations, the Court will be inhibited in relation to this objection.

5. The need for the project to be dealt with as statutory law

In the view of the government, the bill is contrary to article 152 of the Constitution, since it should have been dealt with as a statutory law and not in accordance with the rules of ordinary laws, how it actually happened. The Government starts from the premise that, according to the constitutional case law, the right to health is a fundamental and autonomous right, in so far as it is not only a right of pre-national content but also, principal, of a subjective, universal and inalienable right.

Punctualizes the government that this irregularity is particularly observed in: (i) article 3 of the draft law prohibiting the discriminatory treatment of persons diagnosed with or suffering from epilepsy; and (ii) the definition of the scope of protection of the fundamental right to health by incorporating the training of medical and care personnel, recreation, culture and sport, among other aspects, that is, regulating the essential core of the right and setting the scope of its exercise which is apparently too broad and protective but which, for this reason, should be the subject of a statutory debate and procedure for the purpose of legitimizing these limits.

The Constitutional Court, in the many times referred to Judgment C-662 of 2009, found unfounded the objections that, in very similar terms, had been raised by the government in front of Bill No. 312 of 2008 Senate, 90 of 2007 Chamber, "Law Sandra Ceballos, for which actions are established for the integral care of cancer in Colombia", considering that the conditions that, according to the case-law, were not present in that regulation. constitutional, they activate the special reserve of statutory law. In this opportunity the Court will reiterate that precedent, based on the following considerations:

5.1. Article 152 of the Political Charter establishes the statutory reserve of statutory law for certain matters, related to (i) the fundamental rights and duties of the persons and procedures and resources for their protection; (ii) administration of justice; (iii) organization and regime of political parties and movements, status of opposition and functions elections; (iv) institutions and mechanisms of citizen participation; (v) states of exception; and (vi) electoral equality between the candidates for the Presidency of the Republic.

5.2. The need to establish a parameter defining the limit of the statutory legislator led to the previous decisions of the Court, which have been repeatedly established in a stable manner, established the material characteristics of the matters subject to the statutory reserve of law.

5.3. A comprehensive summary of this doctrine is found in the judgment in Case C-981 of 2005_21], in which it was established that the statutory reserve of law was required, in the case of fundamental rights, in the events in which it is (i) rules which develop and supplement the rights, (ii) which regulate only the essential structural elements, (iii) which directly regulate their exercise and also the development of their field from the core (iv) which refer to the content closest to the core of the Constitution. (v) which regulate aspects inherent in the exercise and, in particular, what it means to enshrine limits, restrictions, exceptions and prohibitions affecting the essential core, vi) when the legislator assumes in a comprehensive, structural and complete the rule of law, vii) which refer to the general structure and regulatory principles but not to comprehensive and detailed development, thus regulating the fundamental structure and basic principles, and viii) which refer to laws that deal with Major and important situations of rights. " These rules, in turn, synthesize several judgments on the same particular, which have contemplated univocamente that the statutory reserve of law is preaches of norms that regulate in an integral, structural and complete the rights or fundamental duties, or refer to areas of their core core._[22]

5.4. The Court does not share the Government's assessment that the aim of ensuring a comprehensive approach to the problem of people suffering from epilepsy involves a complete regulation of the essential core of the right to health, This is a fundamental right, which makes the way for statutory legislation imperative. This is, rather, a set of provisions which, in the field of comprehensive care for people with epilepsy, introduces some adjustments to the SGSSS, sets out in a special way the rights of people with epilepsy, and sets the guidelines for that, in all orders, the policies are adopted and the necessary measures are taken for the achievement of those objectives, issues which, in this dimension, are proper to the ordinary law. As stated in Case C-662 of 2009, in this case the budgets are not met to consider that the draft law under censure is subject to the statutory reserve of law, since it is clear that, apart from the In the case of the draft law which is the subject of a study, its partial and specific nature as regards the scope of protection of this right, the argument raised in the constitutional case-law on the condition of the right to health is an element of judgment sufficient to register it within the legislative configuration margin of the legislator ordinary.

5.5. In addition, it should be noted that in its lending dimension, the right to health requires legal configuration, which is part of the orbit of the ordinary legislator, without it being noted that, due to the progress made in the field of This is a fundamental principle of the right to health, and there has been a vacillating of its powers, to the benefit of the statutory legislator, so that, in the future, any alteration of the SGSSS should be made by this exceptional legislative modality.

5.6. Furthermore, the reiteration of the constitutional provisions prohibiting discrimination, which are applicable in the law in a specific manner to persons suffering from epilepsy, does not fall within the criteria laid down in the case-law. to determine the presence of a statutory reserve of law, because the rule limits itself to enunciating the right, but does not advance, in relation to it, in the developments to which the case law refers as determinants of the reservation, in the measure It cannot be said that it is in the face of a norm that develops and complements the right to the equality of the people with epilepsy, neither moving towards the regulation of their essential structural elements, or regulating their exercise directly, nor, certainly, means to enshrine limits, restrictions, exceptions and prohibitions which affect the core core. Nor is it a standard in which the legislator takes a comprehensive, structural and comprehensive approach to the regulation of the right to equality for people with epilepsy.

5.7. In the foregoing considerations, the Court declared unfounded the objections concerning the need for the project to have been dealt with as a statutory law.

6. Project tax impact, non-compliance with Organic Law 819 of 2003

6.1. For the National Government, the bill that is objectified is contrary to article 7or the Organic Law 819 of 2003 and, consequently, also contrary to the article 151 of the Political Constitution, which enshrines the higher hierarchy of the organic rules. In fact, Article 7or Law 819 of 2003 states that, at all times, the tax impact of any bill that orders expenditure or grants tax benefits must be made explicit and must be compatible with the Fiscal Framework of the Medium Term Effect for which the tax costs of the initiative and the source of additional income generated for the initiative will have to be expressly included in the explanatory statement and in the respective processing papers. financing of this cost.

Expresses the Government that the project objected, however that it commits public resources and of the SGSSS, is not financed with the available resources and also does not comply with the procedure nor with the requirements foreseen by the Organic Law 819 of 2003, unaware of the provisions of article 151 of the Political Constitution.

For the Government, [c] corollary of the above, this bill does not show consistency with what is foreseen in the Fiscal Framework of the Medium Term, on the one hand, because it is not properly funded by the available, as warned in Communication UJ-1012/08 of June 16, 2008, signed by the Minister of Finance and Public Credit and sent to the then President of the Senate of the Republic, honorable Senator Nancy Patricia Gutierrez, in accordance with article 73) or Law 819 of 2003, unaware of what is provided for in Article 151, but also generates an imbalance in the General System of Social Security in Health since it does not have the same source of funding to enable the benefits to be met and not supported by actuarial calculations that maintain the UPC-POS balance.

6.2. As expressed by the government itself, the organic legislation requires (i) that, in the bills that order spending or grant tax benefits, the fiscal impact is presented explicitly and that it is compatible with the fiscal framework of the Medium Term; (ii) that in order to meet this purpose, both in the project's explanatory statement and in the respective processing papers, the tax costs of the initiative and the source of additional income generated should be expressly included for the financing of this cost; and (iii) that the Minister of Finance and Public Credit, in any time during the legislative process, it has the duty to conceptualize on the consistency of the reports made, a concept that cannot go against the medium-term fiscal framework.

As is also observed by the Government, to proceed with the analysis of the constitutionality of a bill for infringement of the provisions of Article 7or of the Organic Law 819 of 2003, it is necessary to (a) to establish that (a) is a draft law that orders expenditure or grants tax benefits, and (b) that the impact of the project on public finances is incompatible with the medium-term fiscal framework. In the absence of these prerequisites, it cannot be assumed that in the course of the project the Congress should have been subject to the requirements of Article 7or Law 819 of 2003.

6.3. In the report of substantiation of objections in the Congress of the Republic, in relation to this point, besides referring to the considerations that on a similar objection made the Constitutional Court in Judgment C-662 of 2009, it is expressed that the measures contained in the bill do not entail additional fiscal impact, since it is directed to achieve that, with a rationalisation of the resources allocated to the General System of Social Security in Health (SGSSS), it can be achieved satisfactory care for people with epilepsy. In this sense, for the congressmen, the provisions of Law 819 of 2003 to which the Presidential Objections refer are not applicable to the draft law objecting.

6.4. On this particular, as was stated in Case C-662 of 2009, the Court has elucidated the implications of the organic forecast contained in Article 7or Law 819 of 2003, regarding the constitutionality of the legislative procedure. In particular, the following criteria were laid down in Case C-315 of 2008:

" 3.9.2.1. The obligations laid down in Article 7or Law 819 of 2003 constitute a parameter of legislative rationality, which is aimed at fulfilling constitutionally valuable purposes, including the order of the public finances, macroeconomic stability and the effective implementation of laws. The latter, as a preliminary study of the compatibility between the content of the bill and the projections of economic policy, decreases the margin of uncertainty with respect to the material execution of the legislative forecasts.

3.9.2.2. The mandate of adequacy between the justification of the bills and the planning of the economic policy, however, cannot be understood as a requirement for the approval of the legislative initiatives, the fulfillment of which falls to the exclusively in Congress. As a result Congress lacks the technical assessment bodies to determine the fiscal impact of each project, the determination of the additional sources of financing and the compatibility with the fiscal framework. In the medium term, and (ii) accepting an interpretation of this nature would constitute an unreasonable burden on the Legislator and would grant a correlative power of veto to the Executive, through the Ministry of Finance, in respect of the competence of the Congress to make laws. A power of this character, which involves a barrier in the constitutional function of normative production, is incompatible with the balance between the public authorities and the democratic principle.

3.9.2.3. If this mandate is considered as a mechanism of legislative rationality, its fulfillment initially corresponds to the Ministry of Finance and Public Credit, once the Congress has valued, through the tools it has at its disposal, the compatibility between the expenditure generated by the legislative initiative and the projections of the economic policy drawn up by the Government. Thus, if the Executive considers that the Chambers have carried out an analysis of the tax impact in error, it is up to the Ministry of Commerce to participate in the legislative procedure, in order to illustrate the economic consequences to the Congress. of the project.

3.9.2.4. Article 7or Law 819 of 2003 cannot be interpreted as such that the lack of competition from the Ministry of Finance and Public Credit within the legislative process affects the constitutional validity of the respective processing ".

6.5. In this context, for the Court, the first observation that can be made against the objection raised by the government in this act is that, in its general dimension, it does not satisfy the requirements of a charge due to the lack of knowledge of the Article 7or Law 819 of 2003, in so far as, except in the specific aspects to which the Court will refer later, it does not specify what are the provisions of a public expenditure In the case of the non-funded additional, the provisions do not imply a contradiction with the medium-term fiscal period.

If the government considers that the project's process should be subject to these forecasts, it must specify which of its rules will entail additional public spending and which have implications that are in contravention with the medium-term fiscal framework.

As this is not the case, the Court will be unable to rule on this charge in relation to the draft law as a whole, without prejudice to the considerations it will follow in relation to the specific aspects raised by the Court. Government.

6.6. In the context of the general approach on how the fragmentary regulation of issues relating to health systems affects the public finances and sustainability of the SGSSS, the Government sets out the following aspects of the law as follows: specific recipients of the charge:

-The Ministry of Social Protection will require all entities and health institutions in the country, the implementation of comprehensive protection programs for people with epilepsy " [article 6o of the bill];

-The National Government will be able to create an account with different sources or contributions: private, public or of resources of international cooperation for prevention, research, comprehensive medical care, timely and permanent, assuring the availability of modern equipment, training of the human resource involved in the integral care of the patient with epilepsy.

-People who are not affiliated with one of the regimes at the time of diagnosis [sic] their integral attention will be left [sic] in charge of the Nation, immediately and effectively, through the Ministry of Social Protection " [article 9o of the bill];

-The Commission on Health Regulation (CRES) should include in the benefits plans of the Taxpayer Regime and the Subsidized Regime the Epilepsy Coverage " [article 10 of the bill];

-The National Government, through the Ministry of Social Protection, will ensure the appropriate training and training of all staff involved in the planning and provision of services and programs to people with epilepsy. " [article 19 of the bill];

-The Health Service (IPS) Institutions, from the second level, must have the means for the diagnosis of epilepsy, such as EEG equipment, laboratory for serum levels, imaging equipment and trained personnel for their diagnosis and treatment " [Article 21 of the Bill].

-The Ministry of Social Protection in coordination with the Ministry of Education will design a special programme to train general practitioners and teaching staff in early detection of symptoms that can lead to a neurological disease among them epilepsy " [article 23 of the bill].

For the Government, the content of the previous normative proposals makes it possible to point out that the legislative initiative involves state of the art technology for the treatment of the disease, it also contemplates conditions for the formation of the human resource, The government has not only been able to finance the General System of Social Security in Health, but the country is also not in a position to assume and that it is incompatible with the the structure and operation of the same, in which particular participants and partners are involved.

6.7. The Court then refers to the above pointed considerations:

6.7.1. "The Ministry of Social Protection will require all entities and health institutions in the country, the implementation of comprehensive protection programs for people with epilepsy" [article 6o of the bill];

This provision is consonant with the recognition of epilepsy as a public health problem and should be read in harmony with the standards under which the guarantee of access, opportunity and quality of comprehensive care to the The population suffering from epilepsy will be done in the terms defined in the Mandatory Health Plan (paragraph 2 of Article 1 of the bill) and it is up to the CRES to incorporate the treatment of epilepsy into the POS (Article 10 of the draft law). Law). It is not a mandate that per se, from the law, generates a fiscal impact or costs that threaten the stability of the social security system in health, for as has been said, the incorporation into the POS must be done by the CRES in the framework of its functions and with attention to the legal parameters for the exercise of the same, which implies considerations on sustainability, cost-benefit, etc. It should be borne in mind that, unlike what was proposed in some of the stages of the project process, the legislator did not choose to directly incorporate into the POS the treatments and medicines for epilepsy, but established them as The responsibility of the CRES, which must be exercised in the framework of the rules governing its function.

6.7.2. The National Government will be able to create an account with different sources or contributions: private, public or international cooperation resources for prevention, research, timely and permanent comprehensive medical care, assuring the availability of modern equipment, the training of the human resource involved in the integral care of the patient with epilepsy.

- People who are not affiliated with one of the regimes at the time of diagnosis [sic] their integral attention will be left [sic] in charge of the Nation, immediately and effectively, through the Ministry of the Social Protection " [article 9 of the bill];

The aspects to which he alludes aside from the government's objection were already considered in another measure of this providence, in which he found that, according to an integral interpretation of the project, it cannot be concluded that the attribution of a special competence to the Ministry of Social Protection for the care of patients with epilepsy, from which the existence of additional public expenditure can be derived.

The Court also considers that enabling the government to create an account with different sources or contributions: private, public or international cooperation resources for prevention, research and training The human resource involved in the integral care of the patient with epilepsy, while it is limited to establishing a faculty, does not imply, per se, the decree of additional expenditure, which would only be generated in line with the amount of the resources of which is nourished by the account.

6.7.3. "The Commission on Health Regulation (CRES) should include in the benefits plans of the Taxpayer Regime and the Subsidized Regime the Epilepsy Coverage" [article 10 of the bill];

It is clear that by radicalizing the responsibility in the head of the CRES, the law does not ignore the system of articulation of competences, nor the general criteria that govern the elaboration of the POS or, the inclusion or exclusion of treatments and drugs in the same, criteria among which sustainability is counted. In this way, it cannot be said that, as a direct consequence of the law, it is affected by this concept, the sustainability of the SGSSS or the financial structure of public entities entrusted with the provision of the health service.

6.7.4. " The National Government, through the Ministry of Social Protection, will ensure the proper training and training of all personnel involved in the planning and delivery of services and programs to people with epilepsy " [article 19 of the bill];

" The Ministry of Social Protection in coordination with the Ministry of Education will design a special programme to train general practitioners and teaching staff in early detection of the symptoms they may give. place to a neurological disease among them epilepsy " [article 23 of the bill].

The project should be interpreted in a systematic way with the rules that establish the structure, objectives and functions of the Ministry of Social Protection.

While it could be interpreted that the law gives the Ministry a direct responsibility for the training of personnel, as the Government does, it is also possible to register the function in the Ministry's own competence framework, which includes the formulation of policies and tasks of coordination, promotion, regulation, surveillance and control.

In this way, the project establishes, by the Ministry, the responsibility of coordinating with the Ministry of Education the design of a special program to train the general practitioners and the teaching staff in the early detection of the symptoms that can lead to a neurological disease, including epilepsy, a program that would have to be carried out at the various levels of the education and social security system in health and in accordance with the funding mechanisms which are contemplated for the purpose.

Similarly, it would be up to the Ministry to adopt regulatory and control measures aimed at ensuring that all staff involved in the planning and provision of services and programmes to people with epilepsy have the appropriate training and training, without it being apparent, as the Government seems to consider, that the training and training of such staff is, by virtue of the provisions of the project, a direct responsibility of the Ministry of Social Protection.

These responsibilities can be met, in principle, within the ordinary development of the Ministry's powers, without, by legal mandate, the commitment of resources for which the source has not been provided or in such a way as to be possible. incompatible with the medium-term fiscal framework.

On the other hand, it should be noted that, in order to fulfill the purposes provided for in the law, the Ministry is empowered to open a special account that will be nurtured with private, public and international cooperation resources and will be entrusted to the Ministry of Education. The activities of exceptional expenditure shall be carried out.

6.7.5. " The Health Service (IPS) Institutions, from the second level, must have the means for the diagnosis of epilepsy, such as EEG equipment, laboratory for serum levels, Imaging equipment and personnel. trained for diagnosis and treatment " [article 21 of the bill].

The standard contains a general forecast, which is in line with the recognition of epilepsy as a public health problem, and according to which the Health Service's Prestators, from the second level, must have the means for the diagnosis of epilepsy. From there, a purely enunciative relationship of such means is made, which, therefore, will be the responsibility of the regulatory authorities, which will have to concretize the point according to technical considerations of character epidemiological, incidence, financial and sustainability.

6.8. On the basis of the foregoing considerations, it is possible to conclude that in the letter of objections, neither in general terms, in relation to the draft law as a whole, nor special, in relation to the specific provisions of which the (i) it is clear that the project will provide for the implementation of additional public expenditure without the identification of the resources necessary to finance it or that it will have an impact on public finances which is in conflict with the Medium-term fiscal framework. For this reason the Court will be inhibited to issue a statement of substance in relation to this charge.

7. According to the reasons explained in the preceding legal bases, the Court finds that none of the presidential objections raised against the bill lead to a comprehensive questioning of its constitutionality. On the other hand, the government's specific questions impose, in certain cases, an interpretative task based on which the scope that the government attributes to the law are discarded and which could pose problems for the unconstitutionality. Therefore, the Court will declare the legislative initiative subject to control to be exequible, but, in accordance with the principle of this providence, it will restrict the effects of this decision to the matters studied in this judgment.

However, the Court considers it necessary to make a call to the legislator to omit to regulate in an isolated manner aspects that are part of the General System of Social Security in Health, not only because of the It is a matter of course for the Commission to be able to take the necessary steps to ensure that the Commission is able to take the necessary steps to ensure that the health services are not properly regulated. did not materialize, if they could, eventually, raise an impact of the efficiency mandates and Universality governing the regulation of the health system in accordance with Article 49 of the Constitution.

VII. DECISION

In merit to the above considerations, the Constitutional Court, administering justice on behalf of the People and by mandate of the Constitution,

RESOLVES:

First. Declare presidential objections to Bill 028 of 2007 Senate, 341 of 2008 Chamber, unfounded for which special protective measures are established for people suffering from the disease. epilepsy, principles and guidelines are dictated for your comprehensive care.

Second. As a result of the above and exclusively in respect of the objections raised by the National Government analyzed in this providence, declare exequable the Bill number 028 of 2007 Senate, 341 of 2008 Chamber, by which special protective measures are established for people with epilepsy, principles and guidelines for their comprehensive care are given.

Third. Inhibit to adopt a substantive decision regarding the presidential objections based on (i) the incompatibility of the project with the principle of unity of matter, the competences of the CRES in matters of regulation the content of the SGSSS and the forecasts of the National Health Plan; (ii) the violation of the right to the participation of users and (iii) the fiscal impact of the project and the failure to comply with the provisions of the Organic Law 819 of 2001, the absence of sufficient grounds for a judgment of constitutionality on the material.

Copy, notify, communicate to the President of the Republic and the Presidency of the Congress, insert in the Gazette of the Constitutional Court, comply and file the file.

Mauricio González Cuervo, President; Maria Victoria Calle Correa, Juan Carlos Henao Pérez, Gabriel Eduardo Mendoza Martelo, Jorge Ivan Palacio Palacio, Nilson Pinilla Pinilla, absent in committee, Jorge Ignacio Pretelt Chaljub, with salvage vote; Humberto Antonio Sierra Porto, Luis Ernesto Vargas Silva, OP-130/10, Magistrates.

The General Secretariat,

MARTHA VICTORIA SACHICA DE MONCALEANO.

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