JUSTICIA CONSTITUCIONAL, LIBRE ELECCIÓN EN MATERIA DE SALUD Y NORMATIVA SOBRE ISAPRES: UN COMENTARIO A LA RECIENTE JURISPRUDENCIA DEL TRIBUNAL CONSTITUCIONAL

Abstract

The private health system (ISAPRES) is based on auto financed insurances which are established considering the risk of beneficiaries and the coverage of the respective plan. This model caused inapplicability actions to be seen by the Constitutional Court based in article 38 ter of Law No 18.933-introduced by Law No 20.015-which currently corresponds to article 199 of D.F.L. No 1 of 2005 (Ministry of Health), that pretends to avoid cost that increases in health plans caused by age factors, arguing that it would restrict the will of the beneficiary in order to decide about the health system he or she will choose, something that would be more expensive comparing the prices paid during his or her work life, affecting its wealth as a consequence of "irrational and excessive payments". The Court has decided these actions stating that the free choice of a health system contains the right to remain in the same health plan without paying the increase of the costs caused by the implementation of a relative table of factors incorporated to the contract, which would seriously affect the contracts and impose a solidarity principle to a model of a different nature.