Judicialization and Health Policy in Colombia: The Implications for Evidence‐Informed Policymaking

Abstract

The existence of the tutela mechanism and the endemic weaknesses of the legislative and executive branches of the Colombian state have led to a de facto judicialization of health policymaking. The objective of evidence-informed policy is to identify effective policy approaches and legitimize policy decisions. Questions arise about the basis on which judges take decisions with significant policy and budgetary consequences, and the forms of evidence they use to inform these. This article focuses on the extent to which courts take account of research evidence in judgements and assesses the implications for health policy in Colombia. We place these discussions in the context of a broader analysis of the ongoing reforms to the Colombian health system and the most recent literature on evidence-informed policymaking. The judicialization of health policymaking offers a suboptimal means to achieve the objective of evidence-informed policymaking. The emergence of a range of evidence advisory bodies in recent years is an attempt to address the issue of judicialization alongside the other constitutional and political weaknesses Colombia faces.

Understanding the Role of Values in Health Policy Decision-Making From the Perspective of Policy-Makers and Stakeholders: A Multiple-Case Embedded Study in Chile and Colombia

“…31 Moreover, it is said that the strong role of the judiciary branch is a signal of new or weak democracies, and in all cases, this kind of legislative substitution is inappropriate for the policy decision-making. 31,32 The smaller set of prioritized and often competing values identified in the 4 decisions, relates to how policy-makers and stakeholders consider them in decision-making and simplify the complex interplay influencing a particular decision to a few elements (values) that represent the extremes of the spectrum of points of views and policy alternatives to solve a problem; for example, the current law that organizes the health system of Colombia has 27 guiding values, which are impossible to address in each policy decision; however, dichotomizing values in tension facilitates stakeholders and policy-makers to identify and prioritize essential values in the policy process.…”

Using Evidence in a Highly Fragmented Legislature: The Case of Colombia’s Health System Reform

“…Saiegh (2010) highlights in addition that "legislators orientate towards satisfying narrow geographic interests". National policy makers are discouraged from making radical reforms through Congress which may affected established networks of vested interest and reforms are instead passed incrementally through executive decrees [Interview 8] or brought about through rulings of the Constitutional Court on the provision of health services (see Hawkins and Alvarez Rosete 2017).…”

“…quickly emerge and disintegrate, and are often held together by 'political strongmen' around which actors coalesce. At the administrative level, the weakness of the legislative and executive branches and corruption endemic in Colombian politics lead to further fragmentation and inefficiency in decision making with the judiciary stepping into the power vacuum to address the most pressing health systems issues (Hawkins and Alvarez Rosete 2017).…”

Conclusion: Reflecting on Studying Evidence Use from a Public Policy Perspective

“…Similarly, the judicialisation of certain health policy decisions in Colombia (Chap. 5), particularly in relation to the provision of medicines and treatments led to different conceptualisations around what evidence is relevant to inform decisions than was the case in policy deliberations within the legislative-executive nexus (for a more detailed account, see Hawkins and Alvarez Rosete 2017). In Germany, courts grappled with the concept of 'hierarchies of evidence' demanding randomised controlled trials to provide the evidence in support of certain minimum volumes, irrespective of the fact that these studies do not exist and are not feasible to be conducted, especially not in the context of German hospital care.…”