HEALTH: Congressional competence and professional practice

This controversy contrasts, on the one hand, the power of the Nation to dictate university instruction plans, determine the national validity of studies and degrees and regulate their qualifications and responsibilities, and on the other hand, the police and control power of the provinces, issues that are inevitably interrelated, as happens with two groups that have a common area in which elements of both groups overlap.

Given their social impact, it is no coincidence that the parliamentary projects that have had the greatest impact, both in the debates and in their progress in the Chambers or their implementation as laws, are those that have to do with health professions.

This research paper presents the factors that promote health legislation regarding the practice of health professions, considered from the perspective of federalism and its constitutional foundation, in order to generate proposals for equitable and quality access for all inhabitants of the Nation.

II.- Introduction

The advances that medical science has achieved in recent decades and that result in complex professional interventions are transferred to the training and control of those who carry them out: health professionals. These new capacities generated new professions and new responsibilities in existing ones, all of which implied a greater demand for healthcare services and information by patients and the need for regulations that establish the necessary regulatory frameworks for the control and access to these services.

Historically, the control of professions in our country was regulated by a system with Professional Colleges or Councils entities to which the National State and the Provincial States have delegated the registration of the registration and the supervision of professional practice and professional ethics in their respective jurisdictions. In the case of provinces in which these entities have not been formed or created, it is the State that directly controls compliance with the rules of professional practice.

In order to practice a profession, registration is mandatory in both national and provincial jurisdictions and in this sense it is necessary to be registered in at least one jurisdiction, as prescribed by National Executive Decree No. 2293/92, which has deregulated the obligation to register in more than one jurisdiction, a regime that, moreover, has not been adhered to by the majority of jurisdictions, which require local registration to practice in their territory.

In Argentina there are around ninety-two (92) Colleges or Professional Councils of the branches of medicine, created by national or provincial laws, which administer the registration, monitor the professional practice, apply the ethical standards, set the fees and administer, where appropriate, mutual pension and social assistance funds.

As we will describe in this paper, the general fragmentation of the health system has as one of its bastions the regulation of human resources. The constitutional framework and the inharmonious advance of the profuse legislation regulating the professions contribute to generating this state of affairs.

In this context, we will highlight the regulations that several countries have established on the subject. Finally, and in the context of the parliamentary projects in force in our country, their degree of progress and their culmination with the recent passing of laws, we will present some conclusions, together with some considerations on what should be a general framework bill for the exercise of the professions of the health team, which is the culmination of what we think about this regulation.

III.- The constitutional reform of 1994 and its impact on the legislation applicable to CABA

From the point of view of the practice of health professions, our country has a milestone from the second half of the 17.132th century with the enactment of Law XNUMX, on the practice of medicine, dentistry and auxiliary activities, also called the law regulating the art of healing.

Despite the promulgation of the law during a de facto government in 1967, its influence and relevance continue to this day throughout the national territory, even considering its character as an adhesion law due to its application in national jurisdiction and its territorial scope, which is limited to CABA and at the time to what was the National Territory of Tierra del Fuego.

However, as we will see in due time, the application of Law 17.132 has not caused any major problems, since it has determined the responsibilities of doctors and has established a uniform system of adherence with implications for civil law, so that the recent modifications carried out by laws of the National Congress in 2006 and 2012 have not been questioned because they were issued by Parliament, despite the fact that, according to those who dispute this power, it could not be issued after 1994, because it is a non-delegated power.

By the way, both Law 17.132 on the professional practice of medicine, dentistry and auxiliary activities and many other laws related or not to health, most were dictated or ratified - in the case of de facto regulations - by the National Congress within the framework of its jurisdiction to exercise exclusive legislation in CABA - in its capacity as a federal territory -, in federal territories - national territories that no longer exist - and under the jurisdiction of national establishments, that is, those that remain under the sphere of the National Public Administration and its decentralized and autonomous agencies.

For example, and as we have mentioned, the law on the practice of medicine, dentistry and auxiliary activities and its amendments and other laws on professional practice were the subject of adherence by the provinces, but the reality is that they have enacted numerous laws regulating the practices of different professions, in exercise of their non-delegated powers conferred by article 121 of the CN, by which they retain all non-delegated power and by article 125 in fine, which establishes the retention by the jurisdictions of social security agencies for professionals.

The 1994 reform of the CN imposed a new status for the CABA, granting it autonomy, with the power to enact its own legislation and grant itself jurisdiction, as well as to elect its head of government. Although due to the status in which the capital city was left it is not considered a province, in fact it now has the power to legislate and regulate its institutions like the provinces, among which is the power to regulate professions, which in fact was reflected in the Constitution of the CABA, although with the exceptions that the Supreme Court of Justice of the Nation - CSJN - has established, regarding the limitations of application that these norms would have, if considered in isolation and without taking into account the entire regulatory framework.[1]

At this point it is worth highlighting that with respect to several health professions, the powers of registration control in CABA continue to be exercised by the Ministry of Health of the Nation, such that the powers of regulation of professional practice that the city holds have not been fully exercised, as those that could be exercised from other jurisdictions, since it would not be feasible at this time to put into operation the professional collegiate bodies for these professions due to the lack of specific regulation of their practice. This situation is maintained by the validity of law 24.588 - the so-called "Cafiero Law" -, which maintains the police power of the National State in the city as long as it is the capital of the Nation and there is no agreement regarding the attribution of the power in question, in the terms of article 6 of the law. In this sense, the National Treasury Attorney's Office - PTN - already maintained in 2002 that "The exercise of police power is not in the hands of the local government but rather corresponds to the national authorities since - in the terms of Law No. 24.588 - the Nation has not transferred to the City the powers to regulate matters involving public health..�?[2] The PTN has held the same opinion in other subsequent opinions and has reiterated it recently in May 2014, on the occasion of the application of regulations of the CABA that were granted police power in health matters and that were related to the law on the professional practice of Pharmacy, Law No. 17.565. [3]

IV.- Constitutional basis for the regulation of health professions

The CN establishes the enjoyment of rights by the inhabitants of the Nation, that is, what would be the regulation of individual rights, according to article 14, in accordance with the laws that regulate their exercise, considering that this exercise of rights does not alter the principles, guarantees and rights recognized, which does not prevent them from being restricted.[4] to some extent, to make them compatible with the rights of others[5].

This is why the "police power" of the State does not only correspond to regulating individual rights, but also covers the control of their enjoyment by those who are beneficiaries, their compliance by those who are obliged, as well as the intervention in the execution of decisions and the application of sanctions, involving the State as a whole, as guarantor in the case that is the object of this work, of the right to health.

We also believe that the regulation of professions finds a fundamental source in the so-called "prosperity clause" of section 19 of article 75 of the CN, also incorporated in the 1994 reform. We emphasize that, where relevant, the competence that section 19 grants to Congress the power to provide matters relating to human development, job creation and, basically, the professional training of workers.

If we take into account what the regulation of the right to health means within the framework of the professional training of the health team, we cannot fail to highlight this competence of Congress as being of fundamental importance, given the level of impact that interventions in health policy have on society.

It is also worth mentioning the first paragraph of section 23 of article 75 of the CN: “23. Legislate and promote affirmative action measures that guarantee real equality of opportunity and treatment, and the full enjoyment and exercise of the rights recognized by this Constitution and by current international treaties on human rights, particularly with respect to children, women, the elderly and persons with disabilities. Although this rule is somewhat redundant, since what is prescribed is already in the previous sections, it seems important to us as the ultimate and concrete foundation in what we consider to be a necessary intervention by the National State in terms of guaranteeing equal opportunities and treatment, that is, access to quality health services by citizens, which is guaranteed from one of its essential aspects, such as the regulation of health professions.

            Also worth noting are the so-called "incidental powers of Congress"[6], those of section 32 of article 75, by which it may be "to make all laws and regulations that are convenient to put into effect the foregoing powers, and all others granted by this Constitution to the Government of the Argentine Nation«. This power is also relevant in relation to those mentioned above, because they imply a preeminent degree of operability of these constitutional powers to legislate in pursuit of primary objectives, such as access to quality health care, which means regulating the exercise of the professions of the health team.

In this regard, the CSJN has also ruled in relation to the regulation of the exercise of liberal professions, that "Regarding professional titles, the power attributed to the National Congress to dictate general norms on the professions whose exercise is a consequence of the qualifying titles, granted by national universities (…) is not exclusive nor exclusive of the powers of local regulation and police, as long as they do not weaken the value of the title.«[7] and also that «Although the policy of liberal professions is the responsibility of local powers, this does not prevent the federal government from exercising such powers.â € ??[8].

Another point to consider is Article 75, paragraph 30 of the CN, regarding the power of Congress to legislate exclusively in public utility establishments - among which there could be hospitals -, leaving the power of police and imposition to the provinces, as long as this power does not interfere with the fulfillment of the purposes of these establishments. In this sense, national jurisdiction covers the places where the Nation exercises its powers with respect to the government and which have interventions by professionals, situations that are often transversal in health cases, from those linked to interjurisdictional services, national establishments existing in the provinces or even the performance of expert reports in federal courts. In these cases, there is no doubt that paragraph 30 of Article 75 CN prevails, in relation to making the "satisfaction of the national public interest" prevail.

In addition to this and other fundamental constitutional norms that govern the exercise of police power over professions by jurisdictions, there are lower-level national norms that tend to avoid the unjustified submission of professionals to administrative registration procedures, since these would become "internal customs", contrary to the provisions of articles 7 to 11 inclusive of the CN. In this sense, the aforementioned decree 2293/1992 establishes that any university professional who holds a degree with national validity may practice their profession throughout the territory, with a single registration in the College, association or registry that corresponds to that of their actual domicile, without prejudice to the fact that these professionals are subject to the regulations of the practice where they act. This deregulation of the registration has been questioned by the professional associations of the jurisdictions and its application in these is uneven, it has even been the subject of jurisprudence by the Supreme Court, which established that in the case of the Federal Pact for employment, production and growth, which had to do with the application of decree 2293/1992, it required the ratification of the jurisdictional legislatures and the adequacy of the norms that opposed it, so in this case it considered that the aforementioned decree did not apply.[9]

The regulation of professions by the State deserves a separate paragraph, since their exercise compromises the public interest, among which are health professions (doctor, pharmacist, dentist, biochemist, psychologist, etc.). The nature of professions of public interest is regulated by articles 43 and 46, paragraph b) of Law 24.521, on Higher Education, because these professions may put the health, safety and property of the inhabitants at risk, such that the National State intervenes in agreement with the corresponding university authorities, to regulate the hourly load, the basic curricular content and the criteria on the intensity of practical training.

V.- Fragmentation and the policy of leadership of the National State

At this point we see how complex and fragmented the situation is, since we are dealing with independent powers and with concurrent powers of the jurisdictions, because on the one hand there is a federal legislative order and on the other there are rules for controlling the exercise of the professions and their police power of the jurisdictions. In this sense we highlight some of its salient topics in the health professions:

1) the professional title granted by the Nation is enabling but at the same time does not enable one to practice in the provinces until local registration is completed;

2) the degrees granted by the Education portfolio must be recognized by the Health portfolio;

3) As each province regulates, it has the power to recognize professions and their specialties;

4) the control of the exercise is different for each jurisdiction;

The proposed framework is an obstacle to granting efficiency in the generation of professional services with quality and equity for all inhabitants of the country, so that a health policy is imposed from the national level to unify the control of the exercise of health professions.

Added to this situation is the different level of control for certain professions, in which there are no professional associations in all provinces, so that this function is carried out by the competent ministries. This circumstance generates situations of inequality, as the professionals involved do not have the appropriate legal structures for the protection of professional practice, nor do they have the proper control of the registration, as other provinces have, so that these deficiencies translate into a shortage of professionals or lower quality of care, for the jurisdictions that do not have these tools that should be uniform throughout the country.

This fragmentation feature of the health system is evident in the legislation on human resources: in the different provinces there are more than seven hundred (700) legal provisions of different rank, which regulate the activity of health professionals, so it is evident that it will be impossible for there to be coincidences in these regulations.

Without prejudice to the strategies to propose for the solution of this situation, which we will return to in the conclusions of this work, we believe that the actions by the level of leadership and guarantee of the right to health by the National State are being driven by its different powers.

In this regard, it is worth highlighting the presentation of several parliamentary projects that have advanced in Congress in recent years, some of which have even become law, among which we highlight: the amending laws 17.132, on the practice of medicine, dentistry and auxiliaries, law 27.051 that regulates the professional practice of the bachelor's degree in occupational therapy and law 27.072, called the federal law of social work, which regulates the professional practice of bachelor's degrees in social service, topics that we will consider again in this work.

For its part, the Executive Branch has generated, through the Ministry of Health, strategies of cohesion for the control of professional practice, from the creation of the Federal Network of Health Professional Registries (REFEPS), the National Advisory Commission of Degree Professions, the Joint Commission for the Curricular Development of Technical Courses and the National System of Accreditation of Health Team Residencies.

These actions indicate a change in the level of intervention of the National State in recent years, as it assumes its role as generator of guarantees of access to better professional care, regulated and controlled throughout the country, tending to harmony in all provinces, from the degree content, specialties, applicable regulations and periodic validation of specialties, with the aim of eliminating or reducing asymmetries that prevent the lack of mutual recognition between jurisdictions.

VI.- Comparative law

The role of the State in relation to the exercise of professions and how it has been legislated regarding professional control varies according to the federal system of government (with its nuances) or unitary system that the State exercises in its territory.

We have interesting cases to consider on our continent, such as Chile as a unitary State, which since 2005 has established, through its new law on professional practice, a predominant role for professional associations, which are granted public legal status. Although it is not an obligation to join a professional association, a public registry has been established as an enabling requirement for the practice of all professions.

Another unitary country, France, requires compulsory membership for doctors and has delegated to the Medical College of France the specific regulation of professional practice. For its part, the College is organized into county councils in each municipality, regional councils and the National Council.[10]The College, as an autonomous regulatory and jurisdictional body, is made up of councillors elected by their peers and exercises disciplinary, ethical and professional competence control, including compliance with the Code of Conduct. Among the regulatory functions is the drafting of the Code of Ethics, which is proposed by the College to the State, which must be approved and published as a decree of the Council of State.

Considering now countries with autonomous regions, we consider the case of Spain, where the Professional Associations are recognized in the Constitution of the country itself. The Professional Associations are of an autonomous scope but are grouped into territorial Associations, General Councils and, where appropriate, into Associations at a national level. These Associations and the General Councils are those that intervene in the legislation dictated by each autonomous community or the national State, regarding regulation. In this way, the practice is enabled throughout the territory of Spain, by professionals registered in communities other than the one in which they are practicing. Associations are public law entities, to which disciplinary power and professional control are granted, having in these functions specific interference in consumer protection issues.[11].

In the case of the USA, there is already an absence of regulation at the federal level: the dictation of professional regulation in each State, which grants licenses to practice the profession, has been left. In any case, the concept of "professional college" is generally replaced by that of "professional association", that is, any group of professionals organized as a non-profit organization, with objectives that exceed professional practice because they include other union-type objectives, such as lobbying in defense of their interests and others such as training, among others. Regarding the practice of medicine, some States have established, apart from these professional associations - Louisiana for example -, entities made up of members elected by the State governor at the proposal of the local professional associations of physicians that we have mentioned.[12]These entities are responsible for evaluating future doctors, granting licenses to practice (establishing a registry), regulating mandatory standards for professionals, checking whether professionals do not suffer from pathologies that disqualify them from practicing, reporting to the authorities conduct that violates state standards for professionals, etc. Finally, these entities have the power to sanction those who have licenses to practice medicine in the State. We see that, unlike the cases mentioned in Europe, in the case of the United States, control over the practice of professions is shared with state-level government entities or agencies, in which associations intervene from the proposal of integration by their members.

Mexico is also a federal state and therefore has its own controversies in the regulation of professional practice, for the determination of the concurrence of the Federation, the Federative Entities and the Municipalities. In this sense, the Mexican Constitution establishes that the Congress of the Union may legislate on the establishment, organization and maintenance of rural, elementary, higher, secondary and professional schools. For this reason, it is considered that the powers relating to the regulation of professions are not exclusive to the Federative Entities, but are concurrent with those of the Federation, that is to say that the states have the authority to legislate on everything related to professional practice within the scope of their jurisdiction in coordination with the aforementioned mandate granted to the Congress of the Union regarding educational institutes.

The case of Brazil, which is also a federation, is of particular concern to us, as it relates to professional practice within the scope of Mercosur.[13]. The Federative Republic of Brazil has mandatory registration in a federal system. The Law regulates the practice of professions by establishing a system that is composed of a Federal Council for each profession located in the capital - Brasilia - and which becomes the highest authority for supervision and administrative regulation of professional practice. On the other hand, there are Regional Councils, one for each State, based in the state capital city, with inspectorates in the main cities of the State. The law on supervision of professional practice grants the Councils a delegation of public power, so they register professionals and supervise professional practice, exercising administrative, regulatory and jurisdictional functions (disciplinary procedures for ethical and professional control).

VII.- Parliamentary projects and the debate they generated

I. Amendments to Law 17.132

There have been several projects presented in recent years regarding the regulation of the exercise of professions. Many of these projects were based on the laws that Congress itself had passed in previous decades for the national jurisdiction, the CABA and the National Territory of Tierra del Fuego.

            Among the projects that were presented to regulate health professions, we would like to highlight some that have advanced with varying success. Previously, it is worth highlighting the modifications to Law 17.132, on the practice of medicine, dentistry and auxiliary activities, which were enacted as a consequence of the laws on surgical contraception (26.130) and gender identity (26.743), which allowed doctors to carry out surgical interventions that contemplated the possibility of becoming sterile (with limitations) and changing sex. In the case of Law 26.130, the prohibitions regarding interventions that lead to the possibility of procreation were modified and in the case of Law 26.743, the impossibility for doctors to carry out surgical interventions that modify the sex of the patient was repealed.[14]

            In the cases in question, rights were enshrined that had been claimed – to a greater or lesser extent – ​​by citizens who demanded State regulation to carry out tubal ligations, vasectomies and sex change operations. Despite the objections that both initiatives had in Congress, they achieved the majorities to be approved as law. The application of these laws modifying a law on professional practice was never questioned due to the impossibility that Congress would have to dictate them due to being an alleged non-delegated power, which is an interesting precedent to eliminate the objections that were made later on this basis.

II. Project for the exercise of the Bachelor's Degree in Nutrition.

            Now, considering other initiatives on professional practice, we see that their parliamentary path had different outcomes. First of all, we will highlight the project of the Deputy (MC) Mónica Torfe, to regulate the practice of the degree in Nutrition, presented in 2008. The project established a framework to which the jurisdictions could adhere, since it provided in its article 2 that it regulated "The practice of the profession of nutritionists or nutritionists is subject to the provisions of this law, without prejudice to the current provisions issued by the jurisdictional authorities and those that they establish in the future throughout the national territory., while Article 22 stipulated: “Application in the jurisdictions. The application of this law in the provinces and in the Autonomous City of Buenos Aires includes the rules for the execution of the registry of sanctioned and disqualified persons and those for re-registration, with the other provisions being subject to the adherence or adaptation of its regulations, in accordance with the provisions of the legislation of each jurisdiction.

            In its treatment in the Health and Social Action and Criminal Legislation commissions[15] It was approved unanimously, but when it was considered in the chamber it had 139 positive votes and 28 negative votes, highlighting the mention made by Deputy (MC) Monica Fein, regarding the fact that the project "addresses the issue of professional competence and practice, which we believe correspond to the provincial legislatures and the university."[16]

            This project was not discussed by the Senate, and therefore expired; it was resubmitted by the author in March 2011, and had a similar treatment because it was approved on November 28, 2012, and the Senate did not discuss it, expiring in 2013. At the time of writing this work, the project is reproduced by Deputy Ivana Bianchi, valid to be discussed in the parliamentary year 2015.

            It is worth mentioning the discussion that arose regarding this project within the Federation of Graduates in Nutrition (FAGRAN), the entity that had originally promoted this regulation. The College of Nutritionists of Córdoba, which is part of FAGRAN, opposed the continued requirement of this law from the National Congress, because it claimed that trying to sanction legislation of national scope to regulate the profession and establish its responsibilities was, in its opinion, blatantly unconstitutional.for contradicting the rules and principles contained in the National Constitution, both in relation to the distribution of powers between the Nation and the Provinces in matters of professional practice, as well as in relation to the powers assigned by law to the National Executive Branch in the area of ​​the Ministry of Education of the Nation.â€??[17]

            Furthermore, they incorporate the mention of article 42 of Law 24.521 on Higher Education, which establishes: "Officially recognized degrees will certify the academic training received and will enable the respective professional practice throughout the national territory, without prejudice to the police power over the professions that corresponds to the provinces..." , indicating that this last paragraph prescribes “It is clear that all issues involved in the governance and control of the practice of all professions - including, naturally, those related to nutrition - are the exclusive and exclusive responsibility of the provinces in which these professions are practiced.†And he adds: "This provision is rooted in the norms and principles contained in the National Constitution, which, due to their importance, can be considered essential. It involves nothing less than the federal system of government (Article 1), the autonomy of the provinces (Article 5) and the preservation by the provinces of all power not delegated to the national government (Article 121)."

            First of all, we believe that these arguments cannot be considered without considering the fear that the authors would have regarding the police power that would supposedly be removed, could have to do with the tariffs exercised by the professional associations, something that we consider unfounded. In any case, the report of the College of Córdoba omits the invitation to adhere to the jurisdictions that the project prescribes, which is the constitutional safeguard that recognizes a protection forum for local autonomies, so it is clear that this means the power of the jurisdiction to adhere or not, so it can never be interpreted as an imposition. In this sense, the first motivation and foundation of the project was to implement equality before the law for all citizens, providing jurisdictions that did not have specific legislation on the matter, the possibility of adhering to that dictated by Congress.[18]

            Regarding Law 24.521, its articles 42 and 43 establish the powers of the current Ministry of Education in relation to laws regulating the exercise of professions, that is, that this Ministry can only intervene with the prior existence of a law on the exercise of the profession and within the framework of the scope limited by university autonomy, so it is only authorized to promote in the National Interuniversity Council what is appropriate at the curricular level.

In short, the competence of the agencies is attributed by law, so there can hardly be any subtraction of functions corresponding to the Executive Branch if they had been enshrined in the project and in the case at hand, the Ministry of Education can only officially recognize qualifications and promote modifications to the curriculum in the pertinent areas and levels, making any attempt to endow it with the power to intervene in the responsibilities and scope of qualifications, without the prior legitimacy of a law on the exercise of the profession, unconstitutional.

III. Law on the professional practice of the Bachelor's Degree in Occupational Therapy

This project was presented in the Chamber of Deputies in March 2013 with a structure similar to the Nutritionists project, as stated in its grounds.[19]Its passage through the committees was expeditious, no modifications were made, although it had a minor modification when it was discussed in the chamber on November 27, 2013. It also had no problems in the Senate, being sanctioned as law on December 3, 2014 with Law No. 27.051.

This law is the first comprehensive professional practice law to be passed since the 1994 reform, and thus represents a fundamental precedent for sustaining the competence of the National State in the role of leadership in pursuit of improving equity in the health system.

            In this sense, the law comes to meet the needs of professionals in jurisdictions that do not have a law regulating their profession, much less the collegiate structure that contains them. In fact, occupational therapy is regulated by law 17.132, but its lack of adaptation to the scope and responsibilities of the titles recognized by the competent authorities in recent years, which have given this profession a higher status, has been questioned for years.

This is why the establishment of a National Framework Legislation allows for the establishment of generic guidelines to which the provinces can adhere, enabling the possibility of updating content throughout the country that has become anachronistic as it is currently established. In addition, the incorporation of specialties for professional practice has been planned, also arising from scientific advances that have occurred in the area of ​​competence of the profession, together with the re-registration of professionals and the implementation of the Registry of disqualified and sanctioned persons, connected between the professional associations and the provincial Ministries of Health, coordinated by the Ministry of Health of the Nation; this registry will prevent the practice of professionals disqualified in one jurisdiction and who intend to work in another.

In short, we see how Congress has intervened in health policy tending towards uniformity and agreement with the jurisdictions led by the Ministry of Health of the Nation, to advance against fragmentation and lack of equity in access to health, because there is no doubt that this law goes in the direction of providing quality to the professional service that the population receives.

IV. Federal Law on Social Work

In the same sense of the project for the Bachelor's Degree in Occupational Therapy, Law 27.072 was passed in December 2014 for the Bachelor's Degree in Social Work or Social Service, an initiative that had been presented in September of the same year. Although it is not a specifically health profession, its responsibilities have a lot to do with social causes and determinants of health. In this sense, the profession is defined in its article 4: "The professional practice of social work is considered to be the performance of tasks, acts, actions or practices derived from, related to or framed in one or more of the professional responsibilities established in this law, including the performance of positions or functions derived from judicial appointments, ex officio or at the proposal of parties, understanding Social Work as the profession based on practice and an academic discipline that promotes social change and development, social cohesion, and the strengthening and liberation of people. The principles of social justice, human rights, collective responsibility and respect for diversity are fundamental to social work. Supported by the theories of social work, social sciences, humanities and indigenous knowledge, social work involves people and structures to face life challenges and increase well-being.

We highlight the specific incorporation of the health issue that was made in the Commissions of Social Action and Public Health and Labor Legislation, in article 11, section d), regarding the obligations of these professionals: “Provide any collaboration required by health authorities in the event of epidemics, disasters or other emergencies;†.

The original project was also modified to establish a safeguard for the provinces regarding their competence in this matter. That is why Article 1 was worded as follows: “Article 1°.- Purpose. The purpose of this law is to establish the general framework for the professional practice of social work throughout the national territory, without prejudice to the application of local regulations issued by the provinces and the Autonomous City of Buenos Aires.†, a rule that is complemented by the incorporation made at the same time, regarding the invitation to join the jurisdictions in article 14 of the law.

We understand that the axis of the sanction of these laws of professional practice points to the hierarchization of the professions, because the establishment of a general framework to which one can adhere throughout the territory, tends to protect the interest of the citizens, because it implies the generation of minimum conditions for the provision of professional services with competence, quality and suitability, as stated by the authors in the foundations of the project.[20].

V. Project for the professional practice of obstetrics

The project for the professional practice of obstetrics has been the subject of a long debate in the intervening committees of Health and Social Action, General Legislation and Education, basically due to the regulation of home birth, a practice highly questioned by most health sectors.

This project has been under consideration for years and has received an opinion once again in 2014 (File 2895-D-2014 of Deputy Juan Marcópulos and others – Agenda 1551/2014[21]), with the additional contribution of several partial dissents referring to home birth and a minority opinion by Deputy Pablo Tonelli that advises its rejection, and that refers to the jurisdictional issue that concerns us in this work.

This minority opinion is interesting, since it reflects the position against the power of Congress to legislate on this matter. Several rulings of the SCJN are cited to this effect, among which we would like to highlight some of its considerations in the following: 1) "The power of the provinces to dictate laws regulating the exercise of liberal professions subject to the university requirement is unquestionable, within the police power reserved for them..�?[22]; 2) “The power attributed to Congress to dictate general norms relative to the professions whose exercise is a consequence of the qualifying titles granted by the national universities cannot be considered exclusive or exclusive of the legislation, in everything related to the organization and control system of the professions that are included in the functions of security, hygiene and public health, reasonable and adequate remuneration, ethics and even the elevation of the level of practice, all of which is part of the powers reserved to the provinces.[23]; y3) "It is the responsibility of the provinces to regulate the practice of liberal professions in their respective jurisdictions, to the extent that such regulation does not substantially alter the requirements that the national law demands for this purpose, since within reason, the provinces may establish the complementary requirements that, in the exercise of police power, correspond to them."[24]

Undoubtedly, the jurisprudence is not unanimous on this point, as we have noted in point IV., due to the rulings contrary to that set out in this section. On the other hand, we had also expressed in the commentary on the objections to the Nutritionists' project our disagreement with this approach, since this report of the rejection of the opinion of the obstetrics law omits to consider the invitation to adhere to the jurisdictions, which is the guardianship that limits what can be considered by the jurisdiction as an advance on its autonomy. In this sense, we reiterate that the responsibility of the National State to design global health policies and strategies prevails. [25] and its power to regulate in pursuit of equal opportunities and treatment established by section 23 of article 75 of the CN or the clause on the progress and professional training of workers in sections 18 and 19 of the same constitutional article, so that, since it is evident that the jurisdiction's power to adhere is not impeded, it could never be considered as a requirement that implies obligation, especially when dealing with framework laws regulating professional practice.

This project to regulate the professional practice of obstetrics that we developed was ready to be discussed in the facility in 2015.

VI. Project for professional practice of Music Therapy

This project, which originated from two projects by Deputies Ivana Bianchi and María Bernal, was approved in 2013 and received the sanction of the Chamber of Deputies in September of the same year. In the Senate it was discussed by two committees, the Health and Sports Committee and the Justice and Criminal Affairs Committee, which modified it. This opinion was approved by the Senate on December 3, 2014, so it returned for consideration to the Chamber of Deputies, where the project originated.

Although this profession is relatively new - it was promoted in the 1970s - several provinces already have laws: Neuquén (Provincial Law 2111, dated 19-4-95), Río Negro (Provincial Law 3112, dated 25-8-97), Chaco (by resolution dated 6-5-98 of the Provincial Executive Branch), Tierra del Fuego (Subject No. 264-05), Province of Buenos Aires (Law 13.635, dated 13-11-2009) and Entre Ríos (Law 10.134, dated 27-6-2012). The objective of the project is very similar to the previous ones, as stated in the grounds of the project of Deputy Bernal: “…guaranteeing the population access to suitable care that only a registered professional with university training in Music Therapy can offer, while at the same time developing mechanisms so that professionals have better working conditions..â€??

VII. Other projects presented in the National Congress

We highlight other projects related to the professional practice of health professions that are in force, clarifying that for the reasons stated in point III. of this work, we have omitted several projects related to modifications to Law 17.132, on the practice of medicine, dentistry and auxiliary activities.

1) Therapeutic companions (File 444-S-2014, by Senator Daniel Pérsico): although it is not a university degree, its treatment generates the same controversies regarding the competence to legislate. It was approved by the Senate in December 2014 and would have to be treated with another file in force in the Chamber of Deputies (4955-D-2014, by Deputy María Echosor). File 7566-D-2013 by Deputy María Regazzoli expires on 28/02/2015.

2) Lifeguards (File 4348-D-2012, by Deputy Ivana Bianchi). We reproduce the commentary of the previous project. Approved in September 2013, the Senate modified it in December 2014, so it returned to the Chamber of Deputies for consideration.

3) Nursing, comprehensive amendment to Law 24.004. (File 9043-D-2014, by Deputy Jorge Rivas).

4) Environmental Science Professionals (File 4641-D-2014, of Deputy Julia Perié).

5) Medical aesthetic collaboration (File 975-S-2014, of Senator Sandra Giménez).

6) Nursing, modification of article 24 of law 24.004 (File 286-D-2014, by Deputy Virginia Linares).

7) Psychopedagogy (3847-S-2013, by Senator María Labado. Expires on 28/02/2015).

8) Psychomotorists (4155-S-2013, by Senator Blanca Monllau. Expires on 28/02/2015).

9) Kinesiology, modification of article 3 of law 24.317 (File 4084-S-2013, by Senator Juan Marino. Expires on 28/02/2015).

10) Cosmetology and cosmiatry (File 6926-D-2013, of Deputy Monica Contrera. Expires on 28/02/2015).

11) Pharmaceutical activity, modification of articles 41 to 44 of law 17.567 (File 580-D-2013, by Deputy Ivana Bianchi. Expires on 28/02/2015).

As we can see, many of our legislators remain determined to continue promoting projects in the National Congress that have to do with the regulation of health professions.

VIII.- Conclusions

The lack of harmonization and fragmentation that characterize the country's entire health legislation is clearly and paradigmatically demonstrated in the regulation of the practice of health professions.

On the other hand, we reiterate that we cannot deny the progress in human rights, in the quality of care and expansion of health services that have occurred in recent decades, phenomena that have influenced substantial modifications to health law, especially since the incorporation of International Human Rights Treaties into our NC, on an equal footing with it.

We also do not believe that we can set aside a phenomenon that is advancing, such as the medicalization of health, and another that is retreating, that of the hegemonic medical model, in which the State must intervene as an active operator to limit, for example, the use and abuse of drugs or the indication of therapeutic diagnostic studies that could have been avoided.[26].

These changes necessarily influence all areas and that is why we have detected for several years a tendency to try to organize the law, and among them the branch of health law is relevant. That is why the consolidation of the Argentine Legal Digest operates in a positive sense that tends to harmonize the legislation, although unfortunately it has not corresponded to the importance that health law should have had, since it has not been incorporated as an autonomous branch.[27]

However, other indications from the Executive and Legislative Branches and related to health law indicate that there is an incipient intention to make health legislation more harmonious, equal, equitable, articulated and in line with a comprehensive health policy for the country, that is, that federalism of agreement is put into practice from the legislative level.

These clues - and again following Dr. Claudia Madies and Dr. Oscar Garay [28]– are related to strengthening the leadership role and the design of global strategies of the Ministry of Health, and within the framework of this work we see this materializing in the promotion in its area of ​​the Federal Network of Health Professional Registries (REFEPS), the National Advisory Commission for undergraduate professions, the Joint Commission for the curricular development of technical courses and the National Accreditation System for health team residencies.

We also highlight other proposals from non-partisan groups, which have to do with the implementation of global health policy from a national executive level, such as that of CIPPEC in 2011 or the proposals of the Argentine Health Model of 2012, which emphasize the development that must be given in an integral manner in the planning of human resources, in one case promoting the national health career and a monetary incentive plan and in the other, emphasizing that the human resources program must be relevant to the epidemiological profile of the country. [29]

Within the proposal of the Argentine Health Model, the Strategic Health Plan 2027 project by Federico Tobar and Esteban Lifschitz is proposed, for whom the quantity and quality of health professionals is the most important factor within the health production function of a country, so while maintaining university autonomy, they propose that it be the National State, through a specific strategic regulation body, that accredits the undergraduate and postgraduate training of professionals who would be within the Argentine Health System (SAS: it is the health model they propose to overcome the current problems of fragmentation, which would be applied towards the year 2027), based on the health map.[30]

The other aspect of these changes in the area of ​​professional practice is the legislation on the subject that is being promoted by the National Congress and that has been the subject of treatment in this work in point VII, that is, the laws on the professional practice of the Bachelor's Degree in Occupational Therapy and the so-called Federal Law on Social Work, which includes the practice of the Bachelor's Degree in Social Work or Social Assistants. To this we must add the projects that we have referenced that are advancing in both Chambers.

The implementation of these projects as laws and their progress raises some questions, however. If regulations are passed for some health professions, why are projects for others not moving forward, whether or not they have similar problems?

At least, from the point of view of legislative technique and trying to make a contribution to the harmonization of the right to health, we believe that a general law on health professions should be legislated. This law should have a general part that establishes the provisions common to all professions, among which we highlight the ethical and axiological principles that have been reflected in the first article of Law 27.051 on Occupational Therapy, which states: "The purpose of this law is to establish the general framework for the professional practice of occupational therapy, based on the principles of integrity, ethics and bioethics, suitability, equity, collaboration and solidarity, without prejudice to the current provisions issued by the jurisdictional authorities and those that they may establish in the future throughout the national territory.

On the other hand, many of the provisions of the professional health laws are common, such as the conditions for performance and exercise, so all these regulations can be regulated in the chapters of common provisions, leaving the special part for each profession. In this sense, all auxiliary health professionals that have been incorporated by decree to article 42 of law 17.132 and other professions that now intervene in a relevant way in the health system, such as the Bachelor's Degree in Psychology or Psychopedagogy, just to name two of many, can be incorporated in an organic and structured way.

Finally, and taking as a reference the professions that are in Law 17.132 or those that Congress dictated prior to 1994, we believe that these should be updated in their responsibilities, so this general law of health professions could contain the scope of the practice according to the advances that we have mentioned, whether technological, treatments, new professional scopes or those of generation of rights for patients.

This law could be an important step towards concerted federalism, since to the extent that each jurisdiction establishes and legislates on a certain health service and its access by its inhabitants in a different way than another - in this case from the human resources to carry it out -, situations are generated that may be unequal with respect to the inhabitants of another jurisdiction.

            In this sense, concerted federalism and its constitutional foundation can be put into practice from the legislative perspective with a broad and pragmatic criterion, not only to generate equitable access for all inhabitants throughout the territory and a rational and equitable distribution of the service offering.[31], but also so that the State - Nation, Provinces and CABA - has greater control over those who provide health services, which ultimately results in the effective enjoyment of human rights that the State must guarantee, in this case with respect to the quality of health care for citizens.

            In short, and following Sánchez de León[32], it is essential to generate a new relationship between the National State and the provinces to achieve a reform of the health sector, with an agreement that is addressed "from a rights-based approach, oriented towards promotion, with a perspective from the determinants of health and with the Primary Health Care strategy as a basic component of the reform." As we see from its components, the harmonious and concerted regulation of the professions of the health team would be a fundamental pillar of this reform.

Dr. Ignacio Juan Millé

BIBLIOGRAPHY

– Argentine Legal Digest, Bicentennial Legislation. Ministry of Justice and Human Rights, Buenos Aires, 2010.

– Agustín Gordillo, Treatise on Administrative Law, Volume II, V-36. Administrative Law Foundation, Buenos Aires, 1998.

– Carlos Bidegain, Course on Constitutional Law, Volume 3, No. 495. Abeledo Perrot Publishing House, Buenos Aires, 1996.

– Garay, Oscar Ernesto, Health legislation: from crisis to equity. www.unesco.org.uy/mab/fileadmin/shs/redbioetica/Garay.doc

– Héctor Pérez Bourbon, Manual of Legislative Technique, Catholic University of Argentina Publishing House, Buenos Aires, 2008.

– Lemus, Jorge Daniel and others, Public Health, Epidemiology and Primary Health Care, Marcelo Kohan Diseño, Buenos Aires, 2005.

– What have we learned from health reforms? Sanatorio Gí¼emes Publishing House, Buenos Aires, 2010.

– Adolfo Sánchez de León, More Health, More Rights: The Challenge of Argentina to Come. El Ojo Blindado Publishing House, La Plata, Province of Buenos Aires, 2010.

– Adrian Cannellotto and Edwin Luchtenberg, Medicalization and Society. UNSAM, San Martin, Province of Buenos Aires, 2010.

– Federico Tobar and Esteban Lifschitz, Argentine Health Model PES 2027, Sanatorio Gí¼emes Foundation, Buenos Aires, 2011.

– Javier Vilosio, Lost Opportunities, Del Hospital Editions, Buenos Aires, 2014.