Responsabilidad patrimonial del estado por omisión en el ejercicio de las funciones de inspección vigilancia y control de la Superintendencia Nacional de Salud

Abstract

The structural crisis of the Colombian General Social Security System in Health has revealed that the delayed liquidation of Health Promoting Entities (EPS) by the National Superintendency of Health is one of the main factors exacerbating the sector's financial, administrative, and social problems. This paper analyzes the legal, economic, and social implications of this delayed intervention from the perspective of the State's liability for omissions, pursuant to Article 90 of the Political Constitution, which states: “The State shall be liable for any unlawful damages attributable to it, caused by the action or omission of public authorities.” Throughout this analysis, we will address the historical and regulatory background of the liquidation processes, examine the structural weaknesses of state control, and the economic and legal consequences that affect the actors in the system, including healthcare providers, suppliers, pharmaceutical managers, and users. Finally, proposals are formulated to strengthen the oversight body through the incorporation of actuarial analyses, the creation of technical units for financial risk, aligned with the regulations recently issued by the Superintendency of Health regarding the inclusion of pharmaceutical managers as key players within the health system, and the adoption of preventive mechanisms to anticipate business crises in the health sector. This involves implementing proper preventive monitoring, rather than the reactive approach currently practiced by the Superintendency of Health. The study concludes that the ineffectiveness of administrative action and the lack of timeliness in the Superintendency of Health's decisions of intervention not only violate the principle of system efficiency but can also constitute a failure of service by omission, with financial consequences for the State and serious social repercussions. Bearing in mind that the State is the guarantor of the essential service of health, as stipulated in Article 49 of the Political Constitution state is not only responsible to organize, direct, and regulate the provision of health services to the population in accordance with the principles of efficiency, universality, and solidarity, but also to establish policies for the provision of health services by private entities, and to exercise oversight and control over them. Therefore, this work aims to reflect on and demonstrate that the State cannot limit itself to a passive role, merely carrying out control actions that are untimely and ineffective, since by the time these actions are implemented, the entities have completely lost their financial, technical, and operational capacity due to the lack and absence of prior controls, thereby causing serious harm to those who are part of the Colombian General System of Social Security in Health (SGSSS). Keywords: General Social Security System in Health, National Superintendency of Health, Health Promoting Entities (EPS), Health, essential public service, State patrimonial liability for omission, inspection, surveillance and control, State intervention in health providers.