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 ALTERNATIVE REPORT

TO THE IV PERIODIC REPORT OF THE CHILEAN STATE

CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN

RIGHT TO THE PROTECTION OF HEALTH

CLADEM – CHILE Liaison

2003

ARTICLES OF THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN RELATED TO HEALTH

Article 1

To the effects of the present Convention, the expression “discrimination against women” shall signify all distinctions, exclusions, or restrictions based in sex, which object or result is to decrease or annul the acknowledgement, enjoyment or exercise by women, independently of their marital status, based on the equality of men and women, of the human rights and fundamental liberties in the political, economic, social, cultural and civil environments, or in any other environment.

Article 2

The State Parties condemn the discrimination against women in all its forms, convene to follow, by all the appropriate means and without delay, a policy aimed at eliminating discrimination against women and, towards that end, they commit to:

a)             Consecrate, if they have not already done so, in their national constitutions and in any other appropriate legislation, the principle of equality between men and women and ensure through the law or by any other appropriate means, the practical enforcement of said principle;

b)             Adopt adequate measures, legislative and others, with the corresponding sanctions, that prohibit any and all discrimination against women;

c)             Establish the juridical protection of women’s rights on the basis of equality with those of men and guarantee, by means of the competent national tribunals and other public institutions, the effective protection of women against any and all acts of discrimination;

d)             Abstain from incurring in all acts or practices of discrimination against women and oversee that the authorities and public institutions act in conformity with this obligation;

e)             Take all the appropriate measures to eliminate discrimination against women practiced by any person, organization or company;

f)              Adopt all the adequate measures, including those of a legislative nature, to modify or abolish laws, regulations, uses and practices that constitute discrimination against women;

g)             Abolish all national penal dispositions that constitute discrimination against women;

Article 10

The State Parties shall adopt any and all appropriate measures to eliminate discrimination against women, with the purpose of ensuring them equality of rights with men in the educational environment and particularly to ensure, under equality of conditions between men and women:

h)             Access to specific informational material that contributes to ensure the health and well-being of the family, including the information and counseling on family planning:

Article 11

1.             The State Parties shall adopt any and all appropriate measures to eliminate discrimination against women in the employment environment, with the purpose of ensuring them, under equality of conditions with men, the same rights, particularly:

f)              The right to the protection of health and to safety in the work conditions, including safeguarding the reproduction function.

Article 12

1.             The State Parties shall adopt any and all appropriate measures to eliminate discrimination against women in the medical attention environment with the purpose of ensuring, under conditions of equality between men and women, the access to medical attention services, including those related to family planning.

2.             Without prejudice of what is stated in the above paragraph, the State Parties shall guarantee to women the appropriate services related to pregnancy, birth, and the post-birth period, providing free services when necessary, and shall ensure them an adequate nutrition during pregnancy and breastfeeding.

JURIDICAL FRAMEWORK

The Right to the Protection of Health in the Chilean Political Constitution

In Chile, the right to the protection of health is, in general, privileged by normative tutelage.  The Political Constitution, in its III Chapter “Of the Rights and Constitutional Duties”, Article 19, contemplates norms for the protection of health and other related aspects, necessary for its efficient development.

Specifically, Nº 9 of the Constitutional disposition ensures to all persons “the right to the protection of health.”[1] However, this apparent protection of health actually turns out to be pretty precarious, because the most important concrete instrument of protection of the constitutional guarantees in internal law, the so-called Protection Recourse, is limited only to the tutelage of the final part of the disposition, that is, to the right of the persons to choose the system of access to health (public or private) in such a way that, as it has been pointed out in a number of sentences by the Supreme Court of Justice, each time that a health establishment denies medical services due to lack of means to supply it, the State is exempted from responsibility in the consequences that the denial could produce, since “The denial of attention on the part of the Medical Service based on the lack of means to provide it, deprives it of the condition of abusive or lacking justification and is not illegal either, since the law conditions the granting of services to the resources that the service has available.”[2]

The same constitutional disposition, in its numeral 8, guarantees the right to live in an environment free of pollution.  Nevertheless, this guarantee has substantial limitations, because it only safeguards, by means of the Protection Recourse, the Right to Live in a Pollution-Free Environment, when “it is affected by an arbitrary and illegal act imputable to a specific authority or person.”[3] Thus, the damages to health provoked, for example, by the high atmospheric pollution that affects the large cities of the country and which origin cannot be attributed to an act of some specific authority or person, are not comprised in the protection of this right.

Although the Chilean constitution, in its Article 19 Nº 1 prohibits the application of any illegitimate pressure, however, it has not consecrated an express norm that prohibits the application of medical treatments not consented nor the right to give an informed consent to be the object of scientific experimentation.  If to this you add the population’s lack of information regarding technical matters related to science and medicine, it is difficult to avoid the occurrence of deeds against the fundamental rights, such as the case of the chemical sterilization program by means of the utilization of Quinacrine in the experimentation stage, applied by the Chilean health services, which use was finally prohibited and its registration rejected by the Public Health Institute in 1997, due to the fact that the scientific background information available at the time did not allow guaranteeing that the drug would not have serious secondary effects.[4]  Nevertheless, Quinacrine was applied to approximately 5,000 Chilean women in spite of the contrary recommendations pointed out by international organisms.  On the other hand, the majority of the women that participated in the research did not know about the experimental nature of the method.[5]

A parliamentary motion dated October 2000, which introduced the Framework Bill on Sexual and Reproductive Rights, contemplates a legal disposition related to scientific experimentation[6]; however, the initiative is not yet in the Discussion stage in National Congress.

THE HEALTH SYSTEM IN CHILE

Due to it being a matter of public interest and a fundamental right of social nature, it is the State who is responsible for guaranteeing the Right to the Protection of Health of all persons, bearing in mind for this the definition of health given by the World Health Organization: “maximum physical, mental and social well-being, together with full development of the personal and social potential”. It is also the State’s obligation, not only to regulate the Health System, but mainly, be a supplier of same and, through the generation of Health Policies, administer its resources.

PRIVATE HEALTH SYSTEM

In 1981, the Social Security Health Institutions (ISAPRE) was created, establishing a dual health system in which a public and a private component coexist.  In the private sub-system, in charge of the ISAPRE, a sort of private insurers, by means of the signing of a contract, the user pays a percentage of his/her remuneration[7] and accesses a Health Plan, which provides a certain coverage of health services.  The system contemplates the possibility of paying a larger percentage with the purpose of having access to greater benefits and, as opposed to the public system, it allows affiliating non-salaried persons and without social benefits payments for pension funds (that currently equal 10% of those affiliated to the system) and incorporating as medical dependent persons that are not legal dependants.  The coverage of the health plan shall depend on the amount of the payment, the number of beneficiaries, age and sex.

The private health sub-system is composed by two instruments, the ISAPRE, and the entities that grant sanitary services, especially private clinics and medical centers.  Furthermore, the free choice of suppliers permits those affiliated to the ISAPRE system to access the health services in the hospitals and primary attention centers that depend on the public Health Services.  In Chile, there are currently 195 public hospitals and 218 clinics belonging to the private health service sector.[8]  This averages one public hospital for every 62,852 inhabitant beneficiaries of this system and one private clinic for every 14,562 inhabitants affiliated and beneficiaries of the private health system.  The number of beds available for every thousand inhabitants per Health Service in hospital establishments of the Health Services National System, as at 2001, was 1.82 and the number of beds available per one thousand inhabitants in establishments that do not depend on the Public System, as at the same year, was 0.68.

With the creation of the ISAPRE, on the basis of individual health insurances, and with obvious profit-oriented goals, and founded on a concept of the role of the State in a market economy and the principle of State subsidies, characteristic of the political/economic model in force and consolidated nowadays, part of the social security was privatized, delegating to private entities the exercise of their functions, traditionally pertaining to the State, of access and health services.

This delegation of public functions to private entities that possess their own guidelines, more or less different from the public health policies and with deficient regulation and control on the part of the State, gives rise to discriminatory situations.  A clear example of this is Resolution Nº 2,326 of the Ministry of Health dated November 30, 2000, which recognized that the decision to subject oneself to sterilization is personal, voluntary and not dependant on the approval of third parties, and instructed the health services depending on that Ministry to proceed accordingly, but that, nevertheless, it is not bonding for the private health services, in such a way that some private clinics demand, for the voluntary sterilization, requisites not established in the legislation and others, simply, refuse to render that service.

WOMEN IN THE PRIVATE HEALTH SYSTEM

Currently there are 15 open ISAPRES and 4 closed ones.[9]  The users of the private health system are approximately 3’174,451 persons, between paying affiliates (around 44%) and medical or family dependants (about 56%).  This is equal to 21% of the population and concentrates 50.13% of the workforce.[10]  The beneficiaries aged 60 and over represent 4.6% and women constitute 35.2% of the paying population, concentrated around the 25 to 49 age bracket.[11]

Public perception of the role of the ISAPRE is negative.  12% of the claims received during the last year by the Ombudsman was aimed at these institutions and according to the last Public Account of the ISAPRE Superintendence, in 2002 the number of claims increased by 13% with respect to the previous year; the most frequent causes are the non-payment of the health bonuses and the unilateral increase of the payment values due to adaptation of plans.[12] According to the polls, discrimination against women and old folks is an important source of dissatisfaction.[13]

Women suffer basically two forms of discrimination in the ISAPRE system: of access and of use.  The discrimination of access by socioeconomic level, works both in the case of men as of women; however, in the case of the latter it is greater because their salaries are lower.  On the other hand, they are discriminated in the access to the system for the mere fact of being women.  The discriminations of use are manifested in certain lacks and exclusions that affect women specifically.[14]

Discrimination of access by socioeconomic level

The fact of being based in an individual contract in which the ISAPRE freely sets the price of the plans it offers, determines the possibility of discrimination by level of economic income.  Actually, the ISAPRE will only offer a plan to those it considers economically profitable.  Therefore, there is a clear relation between the socioeconomic level and whether you belong or not to the ISAPRE System: the distribution of the population in the public and private health systems is very unequal, the public system cares for the lower-income, high-risk population; the ISAPRE attract the younger, higher paid population.  87.4% of the subscribers has income higher than US$ 430, i.e., 2.7 times larger than the minimum legal salary and 45% has income of more than US$ 1,285, equivalent to 8 minimum legal salaries; the average monthly taxable income of the subscribers is around US$ 680.[15]

Definitely, the economic discrimination lies in the essence of the ISAPRE System, to the extent that it operates by means of individual contracts in which the price and content of the plans varies almost from one subscriber to another.  The ISAPRE has legal attributions to positively select high-income persons.  This affects women more because they earn salaries that on average are lower than men’s.

The discrimination of access to the system is increased in direct proportion to the ISAPRE plans’ payments, due to several factors.  In this sense, the increase in the cost of the services, the high percentage earmarked for administration expenses in the ISAPRE System or the increase of the tax charge of various kinds, shall increase the access difficulties to the system.

Discrimination of access due to feminine gender

The ISAPRE operate as private insurers and therefore the health risk that each group represents for them is reflected in the cost for those groups in a differentiated way.  When they formalize an individual contract, they adjust the type of plan to the risk of the subscriber and his family group; in this way, a plan for a woman between 20 and 60 years old can be three times the price of a plan with equal benefits for a male subscriber.

Among the reasons given to justify the higher cost and the lesser coverage of the feminine health plans are the greater life expectancy of women, the fact that they utilize more health services, the use of a larger number of medical leaves and, above all, the “greater risk” of women due to their reproductive function.[16]

With the intention of decreasing the access limitations, the ISAPRE have created special plans that limit coverage of childbirth and care for the newborn (“without uterus” plans).  With this they widen the portfolio of insured, but they establish a new discrimination of use.

Finally, the higher price related to sex in the plans offered by the ISAPRE is not solely related to the female subscribers that are able to use the sickness subsidy (medical leave).  The plans in which women are considered as dependants of a male subscriber also command higher prices.

The aspects of legislation that allow gender discrimination in the access to the ISAPRE are characteristic of a system of individual insurance, where the relatively higher risk commands a higher price.  We must also bear in mind that, additionally, women in general earn lower income.

Discrimination of use:  Uninsured period, pre-existence and coverage limits.

In general, current legislation forces the ISAPRE to offer plans that contain at least the listing of services of FONASA.  However, the same legislation authorizes the existence of plans that do not contemplate the totality of these services, as well as exclusions and restrictions to the coverage.  Additionally, it allows coverage limits by beneficiary and/or by service.  The only demand for the ISAPRE is to inform the Superintendence with respect to the plans that do not contemplate all the services.[17]

The above-mentioned “plans without uterus” are an example of those plans that do not include all the services.  In this case the ISAPRE will not cover –or will do so partially- the expenses related to childbirth or care for the newborn and, in fact, women commit to delaying maternity, or else, to not being covered by their insurance if she should choose to become pregnant.  All this, with the purpose of obtaining a lower price or higher financial coverage for other services.  It is necessary to note that women’s incapacity vis-à-vis maternity –for example, in the case of a hysterectomy- is not automatically translated into a decrease in the price of a plan, in spite of the fact that for the ISAPRE the risk of concurring in the financing of services related to pregnancy and childbirth has disappeared.

Regarding exclusions, these comprise all the pathologies in which the beneficiary may be involved in the committing of a crime.  For example, since in Chile abortion is a crime, any related attention is excluded from the possibility of financial coverage on the part of the ISAPRE.  Another coverage exclusion is a suicide attempt.

Coverage restrictions comprise pregnancy prior to contracting a plan and pre-existent diseases.  In the first case it is accepted that coverage be proportionate to the period remaining until childbirth, know as the “ninths”.  This financial restriction operates independently from women knowing or not of their pregnancy and whether they were at the time paying in another ISAPRE.  Regarding declared pre-existent diseases, a coverage restriction of 18 months is contemplated, whilst the ones that are not declared by the subscriber have a coverage restriction of 5 years.  This restriction can last forever if the institution proves that the pre-existent pathology required medical attention during that period and the subscriber tried to hide it.

Aside from the discriminations explicitly permitted by law, there are others less evident.  In the case of women, the ISAPRE not only make the health plans more expensive, but they also decrease financial coverage of the services.  According to the data of the ISAPRE Superintendence, the effective average coverage is lower for women in medical consultations, laboratory exams, imagenology, hospitalization bed/day, Intensive Care Unit, ward rights and medical/surgical fees.  According to a publication of the Ministry of Health, the prices of the plans for women subscribers are 3.3 times higher than men’s.[18]

Another frequent practical de facto exclusion is the low financial coverage granted to certain services.  Actually, according to Article Nº 33 of Law Nº 18.933, an ISAPRE may grant the totality of the services listed in the FONASA tariff, establishing different co-payments or direct pocket payment for each service.[19]

The situation worsens when, upon establishing the contract, financial coverage on the part of the ISAPRE is agreed upon, in percentages referred to the tariff of the ISAPRE itself –which may not coincide with the actual price set by the supplier of the service- or else, with a payment limit referred to the tariff itself.  This makes it very difficult to evaluate how much the ISAPRE is contributing in each case.

When reviewing the offer of plans presented by the ISAPRE Superintendence in its website, an exercise was performed with data from two institutions for a male and a female subscriber, simulating the same age and income.[20]  Below, we show a summary of the coverage for subscribers born in October 1970 with a monthly income of $350,000 (US$500), in plans of free choice of service suppliers.[21]

Table 1: Coverage in ISAPRE1.

Table 2: Coverage in ISAPRE2.