The Government has proposed the creation of the State Public Health Agency (AESP). The initiative is a consequence of the organizational, management and information deficiencies that have been observed during the Sars-Cov2 coronavirus pandemic. The pandemic has led to its creation, because this figure was already provided for in article 47 of Law 33/2011, of October 4, and in article 91 of Law 40/2015, of October 1, of the Legal Regime of the Public sector.
The opportunity of this center is also reflected in the Opinion for Social and Economic Reconstruction of the Congress of Deputies of July 29, 2020, in the Zaragoza Declaration on Public Health Surveillance of March 10, 2022 and in the Strategy of Surveillance in Public Health, agreed by the Plenary Session of the Interterritorial Council of the National Health System at its meeting on June 15, 2022.
Different autonomous communities are already applying to host the AESP, with arguments that range from compensating the emptied Spain to showing with facts the commitment of the current Government to decentralize the national administrative power. The elaboration of its operating statutes is left to the future, as well as deciding whether the body will be a decision-making nucleus or a kind of network of networks that temporizes with the existing public health centers.
Even before the approval and implementation of the AESP, inconsistencies and conflicts are repeated that are a consequence of the lack of definition that drags the conception of the Spanish health system and, above all, its confederal-type design, based on the distribution of powers by communities autonomous, competence conflicts that during the pandemic have been revealed in specific decisions and situations, such as, among others:
−The policies of restriction of social contact that, more than health measures, have led to political differences between the central Administration and some autonomies.
−Political polarization has favored the population’s loss of confidence in the restrictive measures and the reduction of their follow-up.
−The absence of an adequate system of public health and epidemiological surveillance, both at the level of the autonomous communities and in its coordination at the central level.
−The shortcomings in the general health information systems have prevented the availability of data on health personnel, provision of material, number of general beds and in Intensive Care Units (ICU), or even the real incidence of the disease and of its degree of contagiousness and lethality.
−The effort made by health professionals, despite the reduction in staff.
−The unacceptable and illegal temporary situation of more than a third of the health personnel, and the salary restrictions.
−The loss of the universal conditions of health protection, due to the maintenance of mutual societies (Muface, Mugeju and Isfas), has added difficulties for the adoption and monitoring of different types of measures during the pandemic.
−The devaluation of the exercise of the right to health protection for all citizens in the entire Spanish territory provided for in the constitutional text. Guarantee mechanisms have never been established, which could only be developed from the State Government, to avoid patient rejections, or the restriction of some benefits.
−The obstacles put in place by the autonomous communities to set up a common purchasing system, provided for by the General Health Law, but never developed in a general and effective manner, and impossible to develop in a hurry in a crisis situation.
The deficiencies indicated have had as a consequence:
1) The appearance of significant inequalities in access to the provision of health services by citizens residing in different autonomous communities.
2) A rickety development of information systems.
3) Purchasing management mechanisms that prevent economies of scale and the benefits that could be derived from the “purchasing power” of the National Health System (SNS) if it acted jointly and in solidarity.
4) The deterioration of the Ministry of Health as a government body for the management of health policy, due to, among other causes: the quantitative and qualitative reduction of its workforce; the poor legal definition of its role in the coordination of health services; the transfer of some of its essential functions, such as the recognition of the right to health protection; the lack of a single database of the protected population that accredits the recognition of the right, the issuance of a universal health card and the guarantee of “portability” of the right between the autonomous communities.
5) The effective subordination of regional ministries and health services to the economic departments of the autonomous communities, as a consequence of the large volume of health spending in their budgets.
The list of problems and deficits of the Spanish health system that the pandemic has revealed are of a structural nature. For this reason, beyond the immediate actions taken to deal with the pandemic episode or other measures subsequently proposed, such as an audit of the actions taken or the aforementioned creation of an AESP, structural reforms of the system must be addressed to allow new risks to be faced future and reinforce universality and equity in healthcare services.
The constitutional text recognizes the establishment of the “bases and general coordination of health” as the exclusive competence of the State, the latter competence that has not been adequately developed, which is why we propose to the Government and the political parties the drafting of a new Law General Health as the most appropriate and irreplaceable way to make effective the reforms required by the National Health System.
A new General Health Law would not need previous constitutional changes to reconsider the way in which the distribution and exercise of health powers has been produced, both by the General State Administration and by the autonomous communities. Some aspects related to the financing of the health system could specify the range and conditions for its approval of an organic law, such as the complementary modification of Law 3/1986, on special measures in the field of public health.
The “federal orientation” that is proposed for the new law supposes recovering the work in common to achieve and maintain universal health protection, included as a right associated with citizenship in the Spanish Constitution. And it supposes the participation of both the State Government and that of the autonomous communities in the government of health, each one in the roles that the Constitution attributes to them.
The “federal orientation” of a new law is the only possible way to avoid the de facto rupture that has occurred in the management of the National Health System, replaced by 17 health services that function almost independently, with a trend that could be qualify as “confederal”.
In a “federal” government of health, the exercise of its powers by the Ministry of Health supposes the capacity of direct intervention of the same in the actions that derive from those, and cannot and should not be replaced by the search for agreements with the autonomous communities for its application. The law should define more precisely what they are and in what areas these actions must be produced and specified.
In the case of competences on health care, the alternative could go through a definition of the National Health System as a single entity with its own legal personality, and not as the sum of some autonomous health services, which for the most part did not even exist when the General Health Law was enacted.
A Health System with its own legal personality could establish a common information system, purchasing mechanisms of the same nature, a health technology assessment body at the service of the system as a whole, and common guidance and control mechanisms for research that carries out in its institutions, all of which are mechanisms whose current deficiencies have been clearly revealed during the pandemic.
The “federalization” of the health system, both in its public health and health care aspects, should also facilitate the development of new common personnel policies that prevent the shortcomings revealed in both areas, such as a framework statute for personnel of the National Health System, in such a way as to simultaneously avoid temporary situations for a significant percentage of health personnel, or barriers to transfers, or salary differences between autonomous communities.
Without a new legal basis that facilitates a different exercise of health competencies, it is foreseeable that any process of a health-care nature that is attempted (such as the creation of a PEA) will be subject to the same contradictions and limitations, not so much of a technical and political, which suffered from previous processes, such as those that have affected the development of the single medical record, the universal health card, or information systems and epidemiological surveillance as a whole.
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