Legal aspects of Health Tourism, by Dr. Jorge A. Subero Isa

1st National Health Tourism Forum
April 10th, 2015

The presence of the doctor is always intimidating! Because if we do it as a preventive measure we always expect the worst, and when it is for an emergency it is because the worst has come. Sometimes his gaze is as intriguing as that of Pope Innocent X in Diego Velázquez’s painting. That is why Margarite Yourcenar put Adriano in the mouth when he went to visit his doctor the expression of how difficult it was to be emperor in the presence of a doctor.

There are two people to whom one feels dwarfed: before the judge and the doctor. Facing both of them is to solve a problem. In the case of a health doctor and before the judge a legal problem. We almost never appear before them voluntarily and we are rarely invited. Each one in his role is essential for society.

I do not appear before you as a judge, therefore I am not a judge of other people’s behavior. Nor do I come to settle a medical conflict between Hippocrates and Galen. I come maybe to bring sand to the beach. To tell you something that you certainly know better than me: it is not that health is good for tourism, but that tourism is good for health!

Health tourism is nothing more than the consequence of the inequalities that exist between countries and sometimes between the regions themselves. If there were places with the same conditions in the world, there would be no need to move from one place to another in search of health, fun or another reason. However, even in equality there are the same as they are more than others. Recall the work “Rebellion of the farm” by George Orwell, where pigs, being animals are imposed on other animals. They establish a dictatorship and expel humans.

Although health tourism has existed since time immemorial, with its birth in Greece, the modern world is the result of technology and with it nanotechnology and transportation facilities, fundamentally what has allowed its development. The promotion and development of the media have been props for its growth.

We are not at the time where people and knowledge went unnoticed, as happened with that President of the French Republic, Paul Deschanel, who boarded a train in Paris on May 24, 1920, on an official mission to Montbrion, where he would go to a tribute to a dead senator on the war front, and due to the heat he was doing at night on the train, the president, taking advantage of a train stop and an oversight of his escorts, climbed into his pajamas and headed for some railroads and he presented himself as what he was, but no one believed him and they thought he was an insane escape from a nearby asylum, until after several hours the sub-prefect who identified him arrived. From 1920 to date it has been a long time.

It has also been a long time since John F. Kennedy delivered a speech at Rice University in Houston, Texas, on September 12, 1962, to 35,000 people, where he said:

«No one can fully understand the distance we have traveled and the speed at which we have come here, but by way of example, if you think so, we will condense the 50,000 years of the recorded history of human beings in periods of only half a century Following this example, we know very little about the first 35,000 years, except that at the end of them the most advanced human beings have learned to use animal skins to cover themselves. Afterwards, about 10,000 years ago we left the caverns and started building other types of shelters. Only 5,000 years ago, the man learned to write and use a car with wheels. Christianity did not begin until about 2,000 years ago. The printing press was invented five centuries ago and less than two centuries of the 50,000 years covered by this human history, the steam engine provided a new source of energy ».

“Newton explored the meaning of gravity. In the last century we started to have electricity, telephone, cars and airplanes. Until last week we did not develop penicillin, television and nuclear energy, and now, if the new American spacecraft manages to reach Venus, we will have reached the stars literally before midnight today.

«It is a rhythm that leaves us breathless and can not help but create new evils while dissipating old ones: new ignorance, new problems, new dangers. Undoubtedly, the views that open to space promise high costs and great hardships, as well as huge rewards.

Kennedy went on to say that it is not surprising that some preferred to stay as they were a little longer and rest, wait, but that that country of the United States has not been raised by people waiting and resting and wishing to look back.

That said Kennedy just over 50 years ago. The changes in humanity in those last 50 years far exceed what has happened during the half century that the former president referred to. That is to say that in the last 100 years the progress of humanity has been extraordinary. Life expectancy increased considerably by placing itself in more than 70 years today, all as a result of advances in technology applied to medical sciences and pharmaceutical manufacturing. As a result of these technological advances, poverty in the world has decreased, and food production has increased considerably in countries that traditionally lacked them, among others. Robotics and home automation dominate the current technology scenario!

When I recently read that several pharmaceutical companies were planning to put microchips on the lids of their medicine bottles so that the bottle would tell the doctor’s office whether or not the patient was taking their medications when the lid had not been opened for several days. Or when I learned that with the advances of 3D printers and the complexity of the materials they feed on, a new Industrial Revolution was beginning, where medical science will find great support, I wondered how far will we go? It seems that human beings only have as limits in inventions the challenge of overcoming because things have to be done or because they are there.

I remember reading something about an Irishman who, after being asked how to get to Ballynahinch, was heard saying, not without prior thought: “If I were you, I wouldn’t leave here.” Or maybe that expression attributed to George Herbert Leigh Mllory, a British mountaineer who died in June 1924 on Mount Everest, after having participated in expeditions in the years 1921, 1922 and 1924, which when asked on one occasion why he wanted to climb it He replied: “Because it’s there.”

The Dominican drum is vital for the interpretation of our vernacular music, requiring the use of two hands for its execution, one that hits the side that has a goat leather that has not given birth and the other a male goat. Like the drum, tourism requires the intervention of two hands: the Ministry of Public Health and the Ministry of Tourism.

The platform on which the health tourism project has to be installed in the Dominican Republic has a public health policy character of the Dominican State, which in turn is related to tourism. This is important to take into account because it will derive the participation and role that different institutions and public and private sectors should have, mainly those that are linked to the health and tourism sectors.

For such purposes are important elements from the point of view of the feasibility and sustainability of a country project of that nature, the administrative aspects and consideration that the Dominican State may eventually require regarding the transfer and use of technology, capital investment , creation of formal jobs and proportionality of medical professionals, as well as certifications for accreditation purposes and continuing education programs.

Based on the foregoing, we understand that although it is an excellent initiative to execute a project that aims to develop health tourism in the Dominican Republic, it is important to take into account that the execution of the project will require the several institutions, from the private and public sectors, from the unions, among others; that in addition, the health service is a service whose regulation is subject to public policies established by the Dominican State, which in turn derive from the constitutional provision of the “Right to Health”; that the provision of professional services in that area is currently subject to various regulations of a public order nature and therefore any derogation or modification can only be made through the approval of a law; and that the promoters of projects of this nature can offer investors the proper guarantees and legal security of their investments.

Given the public interest of a project that seeks the development of health tourism in the Dominican Republic, as well as the particular interests that it necessarily has to generate, it is foreseeable that conflicts of a judicial nature are generated, which may abort that project. due to the existence of specialized jurisdictions in the Dominican Republic such as the Constitutional Court and the Superior Administrative Court, as well as provisions related to the consumer that could give rise to questions about it.

As previously stated, the high investment in economic terms (US $) that must be made, obliges the promoters of the project to guarantee both international and national investors the legal security and necessary guarantees that their investment is protected against any eventuality derived from the questioning of the norms under which it would operate.

I do not intend to over-medicate them with legal provisions, which necessarily for their validity must be subject to the rule of the Constitution. Laws and regulations we have in abundance that allow a first approach to make the Dominican Republic an important health tourism destination.

I prefer to establish what, in my opinion, would constitute the constitutional framework within which the measures that are merited for the implementation of that economic-social activity should be dictated.

What is health? The Preamble to the Constitution of the World Health Organization, which was adopted by the International Health Conference, held in New York from June 19 to July 22, 1946, signed on July 22, 1946 by the representatives of 61 States , coming into force on April 7, 1948, offers us a definition that has not been modified since 1948, saying that: «Health is a state of complete physical, mental and social well-being, and not only the absence of conditions or diseases. »

It is important to note that in our country the health issue has a constitutional connotation. Thus, in a constant manner from the Constitution of the year 1966, through the reforms of the year 1994 to that of 2002, article 8 invariably established that:

«It is recognized as the main purpose of the State the effective protection of the rights of the human person and the maintenance of the means that allow it to be progressively perfected within an order of individual freedom and social justice, compatible with public order, general welfare and the rights of all ».

Adding, that «To guarantee the fulfillment of these purposes, the following standards are established:
«… 17. The State shall stimulate the progressive development of social security, so that every person comes to enjoy adequate protection against unemployment, sickness, disability and old age. The State will provide its protection and assistance to the elderly, in the manner determined by law, so as to preserve their health and ensure their well-being. The State will also provide social assistance to the poor. Such assistance will consist of food, clothing and as far as possible, adequate accommodation. The State will ensure the improvement of food, health services and hygienic conditions, will seek the means for the prevention and treatment of epidemic and endemic diseases and all other types, as well as giving free medical and hospital assistance to those because of their scarce economic resources they require it. The State will combat social vices with appropriate measures and with the help of international conventions and organizations. For the correction and eradication of such vices, specialized centers and agencies will be created ».

Under this article, most of the laws and other legal and regulatory provisions related to the health and tourism regime in our country were issued.

That article 8 and its numeral 17 were replaced in block by article 61 of the Constitution of the Republic proclaimed on January 26, 2010, which states the following:

«Article 61.- Right to health. Everyone has the right to comprehensive health. In consecuense:
1) The State must ensure the protection of the health of all people, access to drinking water, improvement of food, health services, hygienic conditions, environmental sanitation, as well as seek the means for prevention and treatment of all diseases, ensuring access to quality medicines and giving free medical and hospital assistance to those who require it;
2) The State will guarantee, through legislation and public policies, the exercise of the economic and social rights of the population with lower incomes and, consequently, will provide protection and assistance to vulnerable groups and sectors; will combat social vices with appropriate measures and with the help of conventions and international organizations ».

As I have announced above, any legal, regulatory, administrative or any other provision that dictates on health in the Dominican Republic has to conform to the text of the aforementioned article 61. This provision does not conform to consecrate the definition that on health we WHO offers, but deals with comprehensive health.

In order not to enter into disquisitions on what is understood by integral health, although I recognize that many acceptable and accepted ones have been offered, I prefer to go to article 61 itself in order to determine the concept of integral health.

«Article 61.- Right to health. Everyone has the right to comprehensive health. In consecuense:
1) a) The State must ensure the protection of the health of all persons,
b) access to drinking water,
c) improvement of food,
d) health services,
e) hygienic conditions,
f) environmental sanitation,
g) seek the means for the prevention and treatment of all diseases,
h) ensuring access to quality medicines and
i) giving free medical and hospital assistance to those who require it;

2) The State shall guarantee, through legislation and public policies, the exercise of the economic and social rights of the population with lower incomes and, consequently,
a) Provide its protection and assistance to vulnerable groups and sectors;
b) Combat social vices with appropriate measures and with the help of conventions and international organizations ».

But we must add that being health a service, it must be provided in accordance with the provisions of article 53 of the Constitution itself, which provides:

«Article 53.- Consumer rights. Everyone has the right to dispose of quality goods and services, to objective, truthful and timely information about the content and characteristics of the products and services they use or consume, under the provisions and regulations established by law. People who are injured or harmed by goods and services of poor quality, have the right to be compensated or compensated according to the law ».

As it is a health tourism, it must be assumed that the patient voluntarily goes to the services offered and where his consent plays a vital role, so we have to consider a constitutional aspect that governs our country, as we explain below :

The right of the patient to be required for his consent, acceptance or assent acquires in the Dominican Republic a dimension that goes beyond the limits of pure and simple law and penetrates the scope of the Constitution of the Republic. This is how article 42, number 3 provides the following:

«Article 42.- Right to personal integrity. Everyone has the right to have their physical, psychological, moral integrity and to live without violence respected. It will have the protection of the State in cases of threat, risk or violation thereof. In consecuense:

… 3) No one may be subjected, without prior consent, to experiments and procedures that do not conform to internationally recognized scientific and bioethical standards. Nor to medical examinations or procedures, except when your life is in danger.

This article in its capital part enshrines the right that every person has to respect their physical, psychic, moral integrity and live without violence, for which they have the protection of the State in cases of threat, risk or violation.

Numeral 3 of that article contains an express prohibition that prevents a person from being submitted without prior consent to experiments and procedures that do not conform to internationally recognized scientific and bioethical standards. What is prohibited is that a person can be submitted without his consent to experiments and procedures that do not conform to internationally recognized scientific and bioethical standards. From where it seems to be by analogous argument, that if those experiments and procedures conform to internationally recognized scientific and bioethical standards, then consent is not required.

However, the second part of that number 3 leaves no doubt as to the requirement of consent for medical examinations or procedures.The only exception regarding consent is found in the event that the person’s life is in danger. I believe that such consent must exist even in cases where medical examinations or procedures conform to internationally recognized scientific and bioethical standards.

As noted, there is a difference between experiments and procedures that do not require consent when they conform to internationally recognized scientific and bioethical standards, and medical exams or procedures, which always require the person’s consent.

The civil liability regime cannot be foreign to health tourism, since its consequences result in important consequences that must be taken into account at the time of its implementation, such as; contractual networks, surgical procedures with robots, and personal responsibility, among others.

Among the articles of the Constitution of the Republic that must be taken into account expressly, are articles 42, 53, 61 and 110. Regarding the laws, the numbers: 42-01, General of Health; 541, Organic Tourism Office of the Dominican Republic, modified by laws 158-01, 184-02, 318-04 and 195-13; 542, Organic of the Corporation for the Promotion of the Hotel Industry and Tourism Development; 64-00, General of Environment and Natural Resources; 1-12, National Development Strategy; 424-06, Implementation of the Free Trade Agreement, between the Dominican Republic, Central America and the United States of America (DR-CAFTA); 111, on Exequatur of Professionals; 139-01, of Higher Education, Science and Technology, as well as provisions related to habilitation and accreditation for health facilities.

Within the previous regulatory framework it is advisable to hold a discussion forum for the creation of a structure on which health tourism is based in the Dominican Republic.

Thank you,

Dr. Jorge A. Subero Isa
UNIBE Auditorium, Sto. Dgo.
April 10, 2015

Jiménez de Parga, Manuel, «The political illusion, should we reinvent democracy in Spain?». Page 106.

Kennedy refers to the Mariner 2 spacecraft, which flew over Venus, becoming the first spacecraft to study another planet, a fact that occurred in December 1962.

John Fitzgerald Kennedy, Speeches (1960-1963), A Presidency for History, p. 150, Study, translation, edition and notes of Salvador Rus Ruffino.

Hobsbawm, Eric. War and Peace in the 21st Century, p. 122.

John Fitzgerald Kennedy, Speeches (1960-1963), A Presidency for History, p. 155 and 156, Study, translation, edition and notes of Salvador Rus Ruffino.

Highlighted JASI. Official Records of the World Health Organization, No. 2, p. 100