The Obligation Of The Right Of Access To Health

The obligation of the right of access to health

The first theory that is analyzed in this chapter is that of the jurist Robert Alexy, called the theory of fundamental rights, in the aforementioned theory it is established that having a right is to be in the position of raising demands. Subjective rights are positions because they qualify people, that is, if a rule allows someone to express or mobilize, it means that the norm confers the property of being someone who is allowed to perform any of those actions. The characteristics of subjective law are the legal norm, legal obligation and legal position. Rights would be, reasons that support the legal capacity to guarantee them. After his works, Alexy continued with the study of his theories, and developed various thesis. One of the main is about the existence of human rights, it determines that human rights constitute the basis of the normative system of society. He states that in addition to their essential characteristics, they have a double nature: real, which is perfected with positivization, and the ideal that exists independently of this fact. Human rights then positive to achieve greater protection by providing them with an institutional nature.

In their protection, the values of equality and freedom are enshrined, which are the basis of human rights. Alexy argues that his justification is based on the theory of discourse. Now, Robert Alexy in his theory of discourse and human rights mentions: “Recognizing another individual as free and equal implies recognizing him as autonomous, which in turn implies recognizing him as a person.

Recognize it as a person is to attribute dignity, which means recognizing their human rights ”(2013: 166). That is, that every person, as far as the Mexican State is about, is recognized its human rights, therefore, the obligations that derive from their full compliance, respect and guarantee.

The principle of equality is established in article 3. paragraph 1, of the fundamental law that indicates ‘all persons are the same before the law’. In response to the above, it means that anyone has the same right to another, and that if such a principle is not respected, then it could be witnessed that the rule of law has been fragmented. On the other hand, in the same text and paragraph, it indicates that the fundamental rights will be linking to the Legislature, the Executive and the Judiciary, as a direct law applicable. Which means that every government order must comply with the obligations that are detached from the fundamental rights.

Within the essays that Zárate Castillo wrote, about Alexy’s theory, a division can be observed that Alexy himself does with respect to the borrowing rights, emphasizing that such division consists of three groups. The first of them encompasses the so -called protection rights, the latter understand the rights of organization and procedure;And finally there are the rights to benefits in the strict sense, which are part of the third group.

Regarding the protection rights, which are the rights that will be addressed in this investigation, are defined as those “rights of the fundamental right to the State so that it protects it from third -party interventions.”(Alexy, as cited in Zárate Castillo, 2016: 373). That is, the person who is recognized a fundamental right, is the one who has the ability to proceed to demand compliance with the State, when for a third party, such a right has been undermining.

However, there is a problem of justiciability for the claim of protection rights, and for this two postulates have been indicated: “a) the State is obliged to use at least one effective means of protection and b) if there is only one meansProtection effective, the State has to use it. In any case, how the State must comply with this obligation is largely in the hands of the legislator ”

This means that there must be at least a mechanism for the protection of fundamental rights, so that through its use the demands can be made valid when they are broken. To do this, the procedure to be followed by the Legislative Power must be previously established. As what happens in the case of the Mexican legal system, since obviously the amparo trial would be the mechanism by which, a person may demand respect for a human right that has been transgressed by an authority.

On the other hand, the authors Velasco Cano and Llano, established that although it is true the fundamental rights are those that are recognized by the fundamental law of each State, it is also that they are not only limited to such national recognition, but that they have gone throughInternational limits, and various organizations both supraestatal and supranational have concluded that those rights are required of compliance in their fully. In addition to this they point out:

This is how the fundamental rights that are positivized human rights in the national order, according to the theoretical proposal of Alexy and Borowski, are extended by becoming impranational fundamental rights that are promoted for this case from the European Union. This conception of State reinforces the fundamental rights that are reflected in the national constitutions, having a binding character with the fundamental rights exposed in the legal documents of the supranational organizations, as is the case of the European Parliament, the International Court of Justice of Justice of Justice ofThe Hague and the nascent International Criminal Court. (Llano Franco, as cited in Velasco Cano y Llano.

Such deliberation, as mentioned above described, have led them to expose that human rights start from international instruments and that they cannot be required before a judicial body, because they start from the will of the State that firm them, withoutHowever, when such rights are elevated to the constitution of the State, and then they are incorporated into the international arethe same range and the same mandatory for that state that is part of the pact.

Theory of human development of Amartya Sen

In the theory that Amartya Sen professed, he founded his thoughts on everything related to the development of the human being, leading it for a little closer to what man is and must be, and leaving the development on economic conditions on the one hand. In his work entitled Development As Freedom (1999), he basically synthesized the first ideas of what he defended in relation to human development. He postulated that the issue of development in an outline to potentiate and maximize the abilities and freedoms of each person should be understood and addressed. That is, what as a human being can be exploited to have a healthy recreation in front of society, and that with this brings well -being in his person, both physical and mental, work, professional, economic, social, social, family, and endless aspects, which in turn, would affect their immediate social circle, as to society in general.

To enter a first phase of this theory, it must be made clear what the concept of development is. Sen defined it ‘as a process of expansion of the real freedoms that individuals enjoy’, where ‘real freedom (…) is represented by the person’s ability to achieve several alternative combinations of operations’ that allows [thePerson], in the social, economic, cultural, political and environmental environments that are found, doing valuable things for them and their families." 

The concept of development referred to and that was previously described, can also translate that people, each in their personal and individual way could be measured through the capacities that everyone has, therefore, it must be taken into account fromYour scenario. In addition to this, the individual’s freedom also plays a very important role in their development. For example, if a person has certain limitations to perform some activity, consequently he will be at a disadvantage in front of the person who has no such restriction and it has been possible to perform such activity. And those freedoms or limitations to which Sen does not refer to the prohibitions that could exist to carry out certain activities, as is the case with illegal activities, but many times, for having some capacity restriction, whether economical, ofhealth, mental or even social, such a person would not be feasible to do it. Therefore, the State must meet the needs of each of its individuals, seeking its maximum development, and taking care of the freedoms and rights of its governed.

However, in health, which is the toral theme of this research, Sen expressed a very specific point of view for this topic, which stated in the following:

Sen attributes a prominent role to health, in so much time (or end) so that people can enjoy it and enhance their widest capacities for the benefit of their individual development and as actors in the productive and social field. That is, health understood as a means that will allow developing its abilities and freedoms to carry out its objectives and goals. In this way, health arises as a constitutive aptitude and piece for good development that allows people to deploy the abilities of people, that is, the real freedom to do and be what people are willing to value with their life.

Along the same lines that the authors expose in the preceding paragraph, health must be considered a fundamental part of the development of a human being. A person who does not have health, can hardly achieve the objectives that have been set in advance, or even if they have not proposed, there is clearly a disadvantage towards others.

In its postulate, Sen emphasizes that development must be measured with the parameters of the freedoms of individuals, in which contexts or situations are built that allow expressing their autonomies and in this way their capabilities are exposed as well as all their aspirations. Once again, the above should not be understood from the economic point of view, that is, the development referred toAs their strength, their personal aspirations in relation to their individual dignity, all those decisions that are made to be directed to destiny, and finding a balance between thought and acting. Once the above has been possible to develop, so there will be consequences of another nature. But what is sought Facie is for the human being to have full development, without disturbances.

Reason why, it is possible to determine that health plays (following the line of thought that sino develops in its theory) an extremely important role, it could even be affirmed that it is the basis for a person to reach a decent development of any. That is, that it is everything, and that without it, it is practically impossible that the human development referred to in its belief can be specified in a full or effective way.

On the other hand, within this theory it is essential to refer to the freedoms that reflects in its theory, and for this, Sen reveals that:

The objective of development ‘is related to the linking of the real freedoms that people of a specific population enjoy’;Where, ‘people must be seen as actively involved agents, (…) in the construction of their own destination and not only as receptors’ ’ . That is, freedom provides the opportunity to achieve our objectives and goals of the things that we have reasons to assess and include both the processes that allow the freedoms of decision -making and consequent actions, as well as the effective opportunities to do so, inits specific conditions of existence. 

The above can be translated in such a way that freedom has a very transcendental point within human development, since she will be the driver to the objective that was initially raised by man to achieve her fullness.

Sen makes a typification of freedoms in two groups, constitutive freedoms and instrumental freedoms. In relation to the former, they are those freedoms in a first picture, that is, those that are basic and that have to do with human life. “They are the ones that will allow the human being to achieve a full life with quality;Among them we can include a series of elementary capacities, to avoid basic deprivations that limit life

On the side of instrumental freedoms, these can be understood as those that have to do with opportunities and rights, whether direct or indirect, which are provided by the authorities so that the individual can achieve their freedom in a general aspect. Within these freedoms are, as mentioned by Picazzo, Gutiérrez, Infante, and Cantú, all social programs, the economic, social and political systems that are provided by the Government towards the people, the legal and social protection systems,as well as the health system, its institutions and its various programs to be provided to its governed.

As mentioned in the preceding paragraph, the concept of health must be seen from an integral and collective approach. And taking into consideration the authors indicated above:

Among the main deprivations faced by the human being in the space of their instrumental freedoms are the negative health effects that derive from the limitations of a person to access health services, constituted by the lack of coverage, the deficiency inInfrastructure and quality in medical and hospitable service. Therefore, health, as referred to. In this way, one of the most important freedoms of those that human being can enjoy is not exposed to diseases and causes of avoidable deaths that help to have a better level and quality of life and evade poverty. In that context, health plays a main function between quality of life and capacity –Libertad–. Health is a key piece or an aptitude to live better and the lack of it is a threat to social and economic well -being. Thus, having lasting and healthy life is one of the fundamental elements of human development and that every modern and democratic society should consider health as a universal right. Therefore, ‘the improvement of population health must be accepted (.) Universally as one of the great objectives of the development process ’ 

That is why not only should the above be taken into consideration without the aspect of health. Since without it, it is impossible to achieve the goal that Sen shares in his writings. The government of a country, has as one of its multiple objectives, that the members of the same, reach a full development in various countenance, mainly focused on their person as an individual, whether emotional, emotional, physical or any other, andIn this way, growth is achieved that later causes an impact not only on its first circle of relations and interactions, but on society itself, which in turn, results in the improvement and progress of a country.

To complement SEN’s theory a bit, it is important to take into account what has been established in legal documents, and in this case, an international instrument. Agenda 21, in chapter 6, protection and promotion of human health, says in relation to development, central theme of this sub -theme, and establishes the following “health and development have a direct relationship. Both insufficient development that leads to poverty and inappropriate development that results in excessive consumption, combined with world population growth, can result in serious health problems ”.

It can be concluded that the document suggests performing actions in the population, aimed at satisfying the needs of primary health care, against communicable diseases, specific policies oriented towards vulnerable groups, advancing urban health and seeking to reduce risks inHealth derived from environmental pollution. All this, with the purpose of strengthening the socio-institutional spaces for the development of the capacities and opportunities of the human being.