Summary
The work highlights the fight against Dengue, its main successes and mistakes from the perspective of Health Law linked to the activity of the Public Administration carried out by the Ministry of Public Health, as the body in charge of executing this health activity. With these arguments, we start from the following scientific problem: what are the necessary elements for the improvement of sanitary legislation in the Granma province in the program to fight Dengue?
The article establishes the necessary elements for the improvement of the sanitary legislation, in order to promote the improvement of the fight against Dengue in the Granma province. Methods such as: analysis-synthesis, induction-deduction, theoretical-legal, historical-legal and exegetical-legal methods were used. In addition, the techniques of recording, bibliographic review and review of the administrative reports that validate this article were used by the Provincial Directorate of Hygiene, Epidemiology and Microbiology in relation to vector control activity and especially the results of the work of the anti-vector campaign against the Aedes Aeghity mosquito.
Introduction
Modern society is a complex scenario, where dissimilar technological, productive, manufacturing, service provision processes converge (…), in conjunction with the interactions of the various subjects that affect the wide accumulation of social relationships and in reciprocal influence, feel the bases of its development. However, such evolution is not without constant and noticeable risks towards all spheres of action, resulting from the advancement of social practices and the maintenance or deterioration of the biotic or abiotic conditions of the environment. This has been a historical constant with which humanity has had to confront and foresee strategies to avoid the capitalization of such risks in harmful results to individual interests and rights in such a way that they affect the community.
Perhaps the Health sector is one of the spheres with the greatest incidental burden of risks associated with the community, due to the cross-sectoral and cross-cutting nature that its scope of action projects towards the rest of the activities and social processes, especially reference, towards those matters concerning hygiene and collective health, an issue present in the agendas of governments from the most archaic civilizations to the societies with higher standards of living today and industrial development.
Cuba, as an island country, lives in constant epidemiological alert, in a geographical setting permeated by various factors, causes and conditions prone to the spread of epidemics that affect the collective health of its citizens, due to the characteristics of its climate, as well as the increase in unsafe deposits, as a result of irregularities in the water supply, the existing inadequate housing and sanitary infrastructure, as a consequence of unplanned urbanization and the growth of artificial deposits due to the greater accumulation of solid waste in most of the urban settlements.
In order to combat and prevent the introduction and spread of foreign communicable diseases, from the dates of 1899 and later in 1902 two directive instruments of the Hygiene and Epidemiology policy appear that come to strengthen the work of the Health Boards that had been operating in the councils and later in the Cuban city councils of the beginning of the century.
In this sense, as an article in the GRANMA newspaper maintains: “The eminent Cuban scientist Carlos J. Finlay could not have been more foresighted, when in 1898, he warned:… to free the island of Cuba from the two most terrible plagues that they scourge its soil, so it would be necessary to declare war without respite against the mosquito… ”More than a century later, the sentence remains conclusive. Surveillance and anti-vector control is today a decisive component of health systems for the prevention and control of vector-borne diseases; which constitute a growing global health problem, alarmingly increasing its incidence and expanding its geographical extension "
Such a situation has come to legitimize the role of Public Administrations as State entities in charge of the fulfillment and realization of recognized constitutional rights and guarantees, designing in the field of health care, as a paradigm of state intervention model that advocates activism state in the acts and administrative activities related to the protection of individual and collective health, and in matters of Public Health we appreciate how enormous efforts have been dimensioned for the preservation, guarantee and control of the hygienic and epidemiological conditions of a collective nature.
Thus, in Article 50 of the Cuban Constitution it establishes and I quote: everyone has the right to have their health taken care of and protected. The State guarantees this right: with the provision of free medical and hospital assistance, through the network of rural medical service facilities, polyclinics, hospitals, prophylactic and specialized treatment centers; with the provision of free stomatological assistance; with the development of health outreach and health education plans, periodic medical examinations, general vaccination and other preventive measures against diseases. The entire population cooperates in these plans and activities through mass and social organizations.
Consequently, when analyzing doctrinal criteria as stated by BERMEJO VERA: “The present public administrations are acquiring - they have already acquired - a new and important dimension. From the frontispiece of the traditional activity of the stable Administration, although the only one immutable, designed from the classic type of -police, promotion, public service-, and interchangeable in its operational techniques, a surprising mutation is currently observed. "
From this perspective, PEMÁN GAVÍN, points out: “public health care has come to be installed in the very heart of the already traditional benefit Administration - there is no doubt that it constitutes one of the clearest exponents of the idea of« existential procure »(Daseinsvorsorge) (…) and has shown, for the rest, a strong and has shown a strong capacity for resistance in the face of the air of crisis and questioning of the traditional postulates of the social state that have been presiding over the ideological debate and the political scene and economic in which we operate in recent years (…)
The Cuban social reality experiences the update of new risks associated with epidemics throughout the country, with special reference to its eastern region, where dengue, cholera and malaria have caused harmful effects on the population during the last three years. The territory of Granma has not been elusive from the attacks of such collective pandemics, especially dengue, with notable incidence rates that, as a correlative of the situation worldwide, have demanded from the Public Health Administration in the territory, as part of the Government in the province, of the adoption of multiple preventive and control measures in order to guarantee the safety of collective health.
In this context, the state sanitary inspection activity carried out by the National Health System, manifests itself in the Granma territory contrary to the effects of compliance with the norms that govern the hygienic-sanitary activity, which is revealed on the one hand in the realization inspection actions improperly developed, delayed, and even not carried out on the one hand; and with the increase in violations of sanitary hygiene standards by people, on the other, highlighting a gap between the social reality experienced in the territory in relation to the fight against Dengue and the legal reality that It serves as a framework for the legitimation and action of the entities providing the Public Administration in the Health Sector within the Granma province.
Faced with this situation, the examination of the legal reality is seen as necessary in order to assess the effectiveness of the legal regime of Health Law in the activity of Dengue prevention, taking as a starting point the state health inspection as a form of administrative activity in the sector of the administration of benefits of the National Health System.
1. The fight against dengue. Analysis in the context of the administrative responsibility derived from the state sanitary inspection
As the World Health Organization says: “Dengue is a viral infection transmitted by the bite of infected female mosquitoes of the genus Aedes. There are four serotypes of dengue virus (DEN 1, DEN 2, DEN 3, and DEN 4). Symptoms appear 3–14 days (average 4–7 days) after the infective bite. Dengue is a flu-like illness that affects infants, young children, and adults. There is no specific treatment for dengue. Severe dengue is a life-threatening complication, but its early clinical diagnosis and careful clinical care by experienced medical and nursing staff are often life-saving. ”
According to TOLEDO ROMANI: “Dengue is the most important vector-borne viral disease in public health. The World Health Organization (WHO) estimates that almost half of the world's population is at risk of Dengue infection, due to an increase of 110 million in the number of people living in urban areas with high transmission. Every year There are nearly 50 million infections, including 500,000 Dengue hemorrhagic cases requiring hospitalization, which is roughly the equivalent of one case every minute. Around 24,000 deaths occur each year from this cause, mainly among children, which is equivalent to a young life lost almost every 20 minutes. "
The studies of Dengue Fever and Hemorrhagic Dengue Fever have become, in recent years, one of the main and most prioritized lines of scientific research carried out in Cuba. Despite the fact that at the beginning of the 20th century the researchers Juan GUITERAS GENER, José CARTAYA and Arístides AGRAMONTE published the first studies on Dengue from the perspective of the Finlaist doctrine, which assumed the Aedes Aegypti mosquito as the main transmitting agent, very few works on the disease appeared registered in the national scientific literature during the first half of the century. The urban yellow fever elimination campaigns carried out throughout the Latin American region during the 1950-1960s, starting with the eradication of the transmitting agent,They contributed to Dengue not being considered a real health problem for the country. So much so, that it was not until 1981, as a result of the first outbreak that occurred on the island, the most serious reported in the region to date, that a true research program on the disease began to be developed in Cuba, which together With the mobilization of all sectors of society for the eradication of the Aedes Aegypti mosquito, they could face the increasingly frequent epidemic events.Together with the mobilization of all sectors of society to eradicate the Aedes Aegypti mosquito, they could face the increasingly frequent epidemic events.Together with the mobilization of all sectors of society to eradicate the Aedes Aegypti mosquito, they could face the increasingly frequent epidemic events.
Dengue is, without a doubt, the most widespread viral disease transmitted by vectors in the world and it is one of the main challenges that health institutions have to face in this century. Tropical countries, due to the habitat and characteristics of the main vector of the disease, present a high risk of Dengue transmission, a situation that becomes even more complex if one takes into account that most of these countries are developing nations. development, with a low GDP, deficient national health systems and few resources to implement effective policies for the eradication of the vector.
In the region of the Americas, where the prevalence and risk of the presence of the vector are remarkably high, the number of cases has steadily increased in recent years, increasing dangerously. Despite the actions carried out by both WHO and PAHO, the possible introduction or re-introduction of new serotypes, as well as the circulation of strains of greater virulence, indicate the possible occurrence of new epidemics in the 21st century, as the 4 Dengue serotypes are circulating in the country.
In Cuba, the history of the disease documented since the extensive epidemic of classic Dengue that occurred in 1977 caused by Dengue 1, which was followed 4 years later, in 1981 by the first epidemic of hemorrhagic Dengue reported in the Americas, whose foci were identified as belonging to type II of the disease, the island remaining without receiving attacks from 1986 to 1997. In this five years a new outbreak located in the province of Santiago de Cuba was identified, of modality two, just like more than a decade ago. In the last 15 years, several important foci (2000, 2001, 2006, 2010 and 2012) have been reported, especially in the eastern provinces and in the capital of the country, in even more aggressive modalities that qualify as category 3 and 4.Given the constant latency of the risks associated with this epidemic, an intense program to control the main vector - the Aedes Aegypti mosquito - has been promoted with a vertical organization for more than 20 years, together with the political will of the government to give priority to supporting the health programs, which have promoted early combat based on active surveillance and established control actions, permissive to detect the presence of the virus early and generate timely actions to face epidemic outbreaks.that have promoted early combat based on active surveillance and established control actions, permissive to detect the presence of the virus early and generate timely actions to confront epidemic outbreaks.that have promoted early combat based on active surveillance and established control actions, permissive to detect the presence of the virus early and generate timely actions to confront epidemic outbreaks.
In the country in 2013 a total of 41 thousand 532 confirmed cases were reported against 80 thousand 279 in 2012. Affecting 68.7 of the country's provinces, 16.6% of the municipalities and 22.3 % of health areas. Mainly in Havana and the municipalities of the country. Circulation of the 4 serotypes in the country for the first time. Granma province was not exempt from the spread of outbreaks of the epidemic, since at the end of 2013, 1130 confirmed cases accumulated, belonging: 1129 to the Bayamo municipality and 1 to Jiguaní, because the epidemiological surveillance did not work correctly and infrastructure conditions, combined with irresponsible attitudes towards the collective health of the inhabitants of the areas, promoted the appearance of outbreaks of the Aedes Aegypti mosquito,and with it the spread of the disease on small scales.
Faced with this situation, the Municipal Hygiene and Epidemiology Centers (CMHE), the Municipal Hygiene and Epidemiology Units (UMHE) at the management level as well as the hospitals and polyclinics, with their respective subordinate family doctors, in the order of execution., have been active in recent years in the State sanitary inspection, in order to control and enforce the legal provisions related to hygienic, sanitary and anti-epidemic standards aimed at preventing, reducing or eradicating environmental pollution and sanitation of conditions of life, study and work of the population, as well as repressing violators of these norms.In the same way, they have projected their work in order to strengthen the hygienic-epidemiological discipline and the responsibility of all organs and agencies and of all citizens in general in the face of emerging and re-emerging diseases due to the entry of tourists and the hiring of Cuban human capital in more than 60 countries.
However, given the increase in the risks of the spread and contagion of the disease, in the territory it is evident during the first four months of the year, that despite having reduced from one year to another around 50 percent the fines imposed, the number of inspections, audits and other sanitary control actions, as well as the reduction by almost half of the pecuniary value sanctioned due to violations, the number of cases of people who transgress the hygienic-sanitary regulations is still significant, with special incidence in the Bayamo municipality (1028 fines, 11573 inspections, 2052 inspections and 1527 actions of another type), which,far from reflecting a decrease over an average 30 percent with respect to the same period of the previous year (the smallest decrease in the province in terms of such indicators) motivated by the characteristics and complexities of the provincial capital and the progress in the program to combat dengue, speaks clearly of the insufficiencies and updates of the risks in the most important city of Granma, which triples and doubles most of the territories of the province in the indicators provided by the Ministry of Public Health of Cuba in correspondence with the regulations of the World Health Organization.speaks clearly of the insufficiencies and updates of the risks in the most important city of Granma, which triples and doubles the majority of the province's territories in the indicators provided by the Cuban Ministry of Public Health in correspondence with the regulations of the World Health Organization.speaks clearly of the insufficiencies and updates of the risks in the most important city of Granma, which triples and doubles the majority of the province's territories in the indicators provided by the Cuban Ministry of Public Health in correspondence with the regulations of the World Health Organization.
This is mainly due to violations that arise in the order of domestic consumption activities as well as in the development of productive activities or the provision of services in the order of not adequately washing the containers for water, or poor handling of solid waste, not going to the attending physician within the first 72 hours when they manifest symptoms, indiscipline in the control of students and collaborators from other countries who arrive in Cuba and lack the health control examination or have not declared the suffering of any disease, on the one hand, as well as significantly manifested in cases in which the agents of the state health inspection service do not undertake their work correctly, either because they do not do it,Either because they do it outside of the established 22-day cycles, or because they do not do it following the correct rules and procedures, or because they do not deliver the materials such as Abate to prevent them and they even sell it; being in the cases detected processed disciplinary.
However, despite the reduction of sanctioning, inspection, supervision and control actions, the indicators of the sanitary requirement have risen in the territory in the reference period in the case of the fines / inspection coefficient from 10.7 to 11.4 percent of inspection actions that generated fines. In this regard, the municipalities with the highest incidence were Media Luna, from 12.8 to 17.6 percent; Buey Arriba, from 11.9 to 15.7 percent and Bayamo, from 8.5 to 10.4 percent, the latter with higher inspection actions than the rest of the municipalities.
This shows the citizenship assumes irresponsible attitudes towards the fulfillment of the requirements established in the current sanitary legislation and consequently this happens due to a cause that comes from the low perception of risk in the community before the contagion of such diseases, a fact that enables the proliferation of vectors. Consequently, as GONZÁLEZ ISLA comments from the experience of a nearby regional context: “The reduction of risks associated with epidemics is a state obligation, with the participation of different agencies and the governing role of Public Health, conceived as risk possibility and proximity of damage occurring; it is a function of threat and vulnerability. The International Sanitary Control constitutes a link of great importance in the achievement of this objective,Therefore, important efforts are directed to achieve this, and control actions are included at the national and provincial level. By all accounts, rigorous control of infectious diseases is practically impossible without everyone's participation. "
2. Potentialities for solving the problem raised
Given the situation, in a brief examination of the potential to face the collective risks resulting from the spread of Dengue, the following can be distinguished among the most important:
- Political will in the territory to promote a program for the prevention and control of epidemics and diseases, with special significance Dengue. Regular and controlling operation of the instances of the Provincial Administration Council and in each territory of the province in relation to actions prevention and control of Dengue. Experience and regularity in the work of the entities of the national health system in the Granma territory for the development of the various anti-vector control programs and state health inspection. Activation of mass organizations in pursuit of collaborate directly with the prevention of epidemics Intersectoral collaboration of Delegations of Ministries and Institutes, as well as of the entities and companies of the territory in the promotion,prevention and control of anti-vector control policies.
3. The sanitary inspection. Foundations of its legal regime from the Cuban administrative activity
The State Sanitary Inspection, executed by the Ministry of Public Health in Cuba, is defined as the set of prevention, treatment and epidemiological sanitary control activities carried out as an exclusive function by the Hygiene and Epidemiology area through the Vice Minister who attends it, at through its directorates, specialized departments, the Provincial Centers and the Municipal Hygiene and Epidemiology Centers and Units, and whose objective is to demand compliance with the sanitary legal provisions.
This public activity has its antecedents in the pre-revolutionary stage, when it was executed by the capitalist state administration, aimed at citizens and the public sector in general, it was regulated in article 1903, of the Civil Code of that time.
The current legal support of this inspection activity carried out by the Ministry of Public Health, was regulated in Decree Law No. 54 of 1982, Basic Sanitary Provisions, which authorizes in its First Final Provision to dictate the necessary methodologies for the correct application and execution of the provisions of this legal body. Concerning the execution of the State Sanitary Inspection in the country, by the National Health System, since the Sanitary Code was not approved in the institutionalization stage.
Subsequently, Law No. 41 of 1983, Law of Public Health, was regulated in the legal system, it establishes in its article 57, the Ministry of Public Health will be in charge of the State Sanitary Inspection in the sphere of its competence and for the purposes of compliance with its execution and control, it will execute it through its Hygiene and Epidemiology Centers and Units, by issuing the provisions that must be complied with directly by all organs and agencies, organizations and other state agencies and entities, individuals or mixed, whatever the level of subordination, by the entire population and foreigners who are in the national territory.
GARCINI pointed out that in the first years of the Revolution the adequate conditions did not exist to create the institutions of the Health System, now established for the proletarian State of that historical stage in Cuba. On the other hand, Raúl Castro, places 1970 when the process of institutionalization in the Cuban nation begins, from the restructuring of the Council of Ministers and the creation of its Executive Committee, the judicial system is then reorganized and the conditions are created to install representative experimental institutions in the province of Matanzas and with this as one of the first laws that benefited the Cuban people was that of access to health free of charge to all citizens, in accordance with the constitutional text. It also takes place in all these changes in the country,the celebration of the 1st Congress of the Communist Party of Cuba and the Cuban Constitution was approved on February 24, 1976, as the culminating point of this entire reorganization process by the Public Administration.
That is why the activity of the sanitary inspection, carried out by the Ministry of Public Health, has links with the inspection authority, also carried out by other agencies of the administrative structure in the country, in the case of the Ministry of Sciences, Technology and Environment, who is in charge of the protection of the environment, the Ministry of the Interior in relation to occupational health and safety, with the Ministry of Labor and Social Security for regulations related to occupational health and with the inspection bodies of the Board of Directors, among others.
This inspection power, carried out in the structures of the Health System as regulated in the internal administrative norm for the exercise of the State Sanitary Inspection, has among its faculties, that of verifying and demanding compliance with administrative and criminal responsibility within the framework of its powers, both for natural persons or legal entities that violate it, for which they use what is regulated in the Cuban legal system in matters of Administrative Penalty Law and in current criminal regulations.
Based on what is regulated in Decree Law No. 100 of 1980, article 9, subsection d, empowers state inspectors to request, in appropriate cases, the initiation of the corresponding disciplinary procedure against leaders, officials and others. workers allegedly responsible for the infractions detected, in accordance with administrative legislation on labor matters, as established in the nation's Labor Code.
The doctrine has traditionally identified the concept of administrative inspection with that of administrative police, or better, to speak more precisely, as a modality of the latter, defining itself as an instrument or technique through which the State intervenes in private relations to verify that, indeed, they comply with the law. In modern times, some authors, as placing the accent on the preventive nature, implicit, within the aforementioned concept, to the detriment of the repressive, have considered more appropriate the replacement of said term by that of "administrative activity of limitation of right"
For its part, ESTEVE PARDO maintains that, given the complexity and increasingly advanced technique of today's societies, the concept of administrative police, understanding this as risk control, carried out by the Administration, through measures Singular, unilateral and punctual has been overcome by insufficient, and increasingly, environmental risks have to be "the object of political decisions of a marked general nature, thereby exceeding management criteria" pointed out as examples of the adoption of singular measures, of the administrative police, it would be clearly incomplete when those affected by the risk turned out to be a community and its environment -Examples: Nuclear Energy or Biogenetics-, transcending environmental protection, as a public good for collective use,as regulated in Law No. 81 of 1997, Environmental Law, due to its link with the duty-right binomial around adequate health, to have an optimal quality of life and social well-being.
3.1 The organization of administrative activity in the Cuban Public Health sector
Health-related activities constitute, according to PEMÁN GAVÍN, “one of the most important and characteristic public services of the social State of our days that fits naturally within the schemes and principles of the“ Benefit Administration ”(universality, equality, continuity, public funding, etc.) "
It is thus, that one of the great subjects whose discussion nowadays does not stop in the doctrine, in spite of having generated thousands of pages on the part of the most notorious iuspublicistas; It is undoubtedly the one referring to administrative activity and the conception of Public Administration.
This situation is largely due to the fact that the content of administrative activity and the very conception of public administration have been two variable and non-uniform concepts, consubstantial with time, the geographical setting, the socio-political regime and especially reference within this, the intervention of the State in social relations in its different modalities.
Consequently, as FORSTTOFTH comments: “The Administration is called upon to make the State's tasks a reality. These tasks are determined according to the basic social reality and the political ideas that individualize the State; that is, in accordance with the substantial content of the Constitution. All your activity must be oriented to this content. Therefore, the Administration needs a directive body, which has its structural place within the Constitution. With this, the special position and role of the State Government are designed. "
In this sense, using the criteria of RUIZ Y GÓMEZ and MOREL OCAÑA, the criteria of GARCINI GUERRA are taken as a basis, for whom “The Administration presents itself to us in a double aspect. As a subject it is a complex of organs, harmoniously constituted, united by hierarchical and coordination relationships. In its object, it is action, activity aimed at fulfilling state purposes. Thus, Administrative Law will include the legal estimate of the Administration-organism and the Administration-activity. (…) (It is therefore) a complex organic structure that acts to obtain specific state goals, in benefit of the interests of society. "
Consequently, one could ask: How are such theoretical conceptions implied in the organic and functional design (objective and subjective) corresponding to the sector of administrative intervention in the protection of health in Cuba? From a comprehensive approach, the National Health System becomes the Public Administration in this sector, as it is a "set of administrative, service, production, teaching and research units responsible for comprehensive health care for the population."
In this sense, as established in article 2 of the Public Health Law: “The organization of public health and the provision of the corresponding services are carried out by the State through the Ministry of Public Health and other institutions, as well as the Health Directorates of the local organs of People's Power, within their respective spheres of competence, as established by law. "
From a subjective point of view, related to the so-called organic theory, the State Administrative intervention is based on the establishment of the Public Health Administration, of which the Ministry of Public Health, results as an Organism of the Central State Administration, subordinate to the Council of Ministers, its superior administrative body with attributed competence for the development of activities related to "the methodological, technical and scientific stewardship, in the provision of services, (therefore) prepares the Branch Plan of Public Health and regulates the practice of medicine and the activities related to it, setting their conditions, requirements and limitations ”.
With the establishment of a Ministerial structure endowed with various directorates and service entities (budgeted and instrumental units (business organizations) at the national level related to the management of the activities of the sector, the adequate establishment of cross-sectoral relations of coordination with other Bodies of the Central State Administration for the development of activities related to Public Health as well as hierarchical relationships with local level management and service and instrumental entities (business organizations), legitimized from the constitutional text itself towards the establishment of local governments (provincial and municipal) in the geographical demarcations corresponding to the provinces,municipalities and the Special Municipality of Isla de la Juventud; which by virtue of the Agreement of the Council of Ministers No. 6176 dated November 13, 2007 "Regulations of the Local Administrations of the People's Power", configure the organization of the Municipal and Provincial Administration Councils as their Administrative Bodies, with subordination direct and functioning in the periods between sessions of the Municipal and Provincial Assemblies of the People's Power as representative bodies of the Cuban State in the territories, being legitimized by virtue of article 13 paragraph 3 of the Regulation itself to "Propose to the Ministry of Economy and Planning the creation, merger and extinction of administrative, economic, production and service entities of local subordination that it directs and controls ”.which by virtue of the Agreement of the Council of Ministers No. 6176 dated November 13, 2007 "Regulations of the Local Administrations of the People's Power", configure the organization of the Municipal and Provincial Administration Councils as their Administrative Bodies, with subordination direct and functioning in the periods between sessions of the Municipal and Provincial Assemblies of the People's Power as representative bodies of the Cuban State in the territories, being legitimized by virtue of article 13 paragraph 3 of the Regulation itself to “Propose to the Ministry of Economy and Planning the creation, merger and extinction of administrative, economic, production and service entities of local subordination that it directs and controls ”.which by virtue of the Agreement of the Council of Ministers No. 6176 dated November 13, 2007 "Regulations of the Local Administrations of the People's Power", configure the organization of the Municipal and Provincial Administration Councils as their Administrative Bodies, with subordination direct and functioning in the periods between sessions of the Municipal and Provincial Assemblies of the People's Power as representative bodies of the Cuban State in the territories, being legitimized by virtue of article 13 paragraph 3 of the Regulation itself to “Propose to the Ministry of Economy and Planning the creation, merger and extinction of administrative, economic, production and service entities of local subordination that it directs and controls ”.
In such an administrative scheme at the local level, the Provincial and Municipal Public Health Directorates, legitimized from article 38 and following of the Regulation of the Local Administrations of the People's Power, are established as administrative structures of direction at the local level, to which The various service entities (budgeted units) are subordinate, as well as the instrumental entities (business organizations) that manage and ensure the necessary resources for the provision of the activities of the health sector in the nation. In this sense, the administrative structure at the local level is complemented by the establishment of Hospitals and Polyclinics, which provide primary and secondary care in the Cuban public health system.
From the viewpoint that is undertaken in these reflections, the role of the National Health System, specifically its Ministry, is legitimately authorized for the planning, study, programming, direction, execution and control of all activity concerning the Protection of Hygiene and Epidemiological Policy from the fight against epidemic, State Sanitary Inspection, hygienic-epidemiological prophylaxis and education for health.
This activity is carried out at three levels: Ministry of Public Health, local organs of People's Power in provinces and municipalities. Administrative entities are established at each level of management and subordination in charge of undertaking the activities of the country's epidemiological policy, by defining the competence of Provincial Centers of Hygiene, Epidemiology and Microbiology, for the technical and methodological direction of the Municipal Directorates in the fields of hygiene and epidemiology, which in turn will have an administrative subordination to the Municipal Director of Public Health. Consequently, the polyclinics, hospitals and other units of the National Health System, are placed under the control,advice and supervision of the plans and programs of the Centers and Units of Hygiene and Epidemiology in their demarcation.
3.2 Inspection as a form of administrative activity
As established by BERMEJO VERA: “There is talk of activity, function or power of inspection, without excessive precision at this time, to identify actions, more or less generically foreseen in the legal system, that enable public administrations to carry out functions of verification or verification of compliance with current regulations, in its broadest sense, that is, including very especially the conditions and technical requirements, an inherent consequence of the imposition that certain people, activities, facilities, objects and products do certain legal norms. The main reason for the provision and exercise of these inspection and control functions is, at any level, security. "
Its elements can be distinguished on the following aspects:
- It is, in the first place, an enforcement activity, because it intervenes directly in the development of the rest of the administrative activities. It helps only the natural or legal persons that the regulations determine to submit to the control derived from the power of inspection, in the This is precisely the measure prescribed by the norm. It constitutes a very important piece to achieve compliance with the law, as it guarantees compliance with the regulatory norms, the exercise of freedom of business and allows the advice and collaboration of those affected.
From the Cuban legal system, the regulation of this form of administrative activity is recognized in Decree Law No. 100, as a norm that develops the powers and competencies vested in the organs and agencies of the State since the Constitution of the Republic.
In this sense, from Article 1 of the Regulation it is held: "The state inspection consists of the control of compliance with the legal provisions and regulations in force, carried out by the central agencies of the State Administration, within their own system or in the exercise of its governing function, or by the local organs of the People's Power, the latter, through their administrative dependencies, on administrative, production and service activities. "
Consequently, the normative body itself legitimizes the competence of the central agencies of the State Administration, throughout the national territory, to exercise or order the inspection of the activities of which they are guiding, and dictate the rules and procedures for their execution at all levels.
3.3 Health inspection in Cuba. Characterization of its legal regime and connection with the sanctioning activity
The State Sanitary Inspection in Cuba is part of the scope of competence of the Ministry of Public Health and its National Health System to develop it and in such a way, demand and control compliance with the sanitary and anti-epidemic provisions aimed at preventing, limiting or eliminating contamination. of the environment, clean up working conditions and study the population, as well as implement and require the application of actions, sanitary-epidemiological regulations aimed at the prevention, reduction and eradication of diseases and other alterations of human health.
Consequently, in the Cuban legal system it has a positivization in Ministerial Resolution No. 215, of 1987, where its article 1 stipulates:
“The State Sanitary Inspection (hereinafter ISE) is the set of activities for prevention, treatment and epidemiological sanitary control carried out as an exclusive function by the Hygiene and epidemiology area through the Deputy Minister who attends it, its addresses, specialized departments, the Provincial Center and Municipal Hygiene and Epidemiology Centers and Units, which aims to demand compliance with the sanitary legal provisions. "
From this perspective, based on the regulation and organization of the activity, it has two main directions: on the one hand, that relating to hygiene and epidemiology of children's and educational centers at all levels, and on the other, referring to various production processes. and the services
As a correlative, the Public Health Law itself establishes the level of subordination of the agents in charge of the inspection in the hygienic-epidemiological institutions of the National Health System, which by virtue of the Regulation for the Sanitary Inspection are legitimated for the fulfillment of a wide range of 44 functions.
From the wide accumulation of functions entrusted to state sanitary inspectors, various limitations in their actions emanate in the practical order, especially derived from the dispersion that the contraventional regime applicable to Hygiene and Epidemiology has in legislative matters and that come from various subjects and areas of activities, given the cross-sectoral and technical nature of the state sanitary inspection that affects self-employment, productive, scientific, medical, educational, labor, agricultural, international sanitary control, etc.
This directly influences the fact that on repeated occasions it starts from the ignorance of the addressees of the regulations, not the inspector, but natural persons, who in certain risk situations do not assume the full performance of the actions that they are competent to undertake. And it goes through a substantive issue such as the ability to be imputable, because although Law No. 41 on Public Health establishes in general compliance with the legal norm, the current regulations of the State Sanitary Inspection, when referring to The responsible subjects make unnecessary distinctions that collide in the interpretation and application of the norm with the provisions of Decree Law No. 54 in relation to the responsibility of individuals.
3.3.1 The requirement of responsibility as a result of the state sanitary inspection
In Cuba, as in the old world, there was no talk of the exercise of the sanctioning power of the Public Administration, until administrative law was developed and therefore the legal provisions that began to classify administrative offenses, which were not It says in no way that there were no administrative bodies, or interests that protected in this order before the 20th century of the last century. An example of this we have with the Legislation of the Indies, implemented by the Metropolis in our country, who with the tendency of establishing the social and educational function that the police fulfill, the conquerors transferred it to Cuba, to reduce the indigenous population and make them useful to civilized life, under the aegis of the cross and the sword.
In the late nineteenth century in Cuba the Criminal and Civil Codes of the Metropolis were extended, which contributed to the process of judicial institutionalization in the country in all orders. Already in 1936, Law No. 802, Code of Social Defense, was promulgated in the country, a norm that collected the offending rates to replace the term of misdemeanors used by the one that preceded it, promulgated on April 4, 1936, the same in his third book collected the misconduct types, not using the term of misdemeanors as previously it appeared in other conceptualized legal provisions.
In 1979, within the institutionalization stage, through Decree Law No. 27, after the removal of the Penal Code, the violations became administrative offenses, to protect legal assets in relation to the standards established by the Council. of Ministers, under the protection of Decree Law No. 80 of 1984; We can mean that the experience that existed in the country with its application was the reason why it was determined the convenience of simplifying and at the same time complementing the legislation in this matter.
At the end of the decade of the eighties of the last century, when the modifications to the criminal legislation were made, with the promulgation of Law No. 62 in 1987 and almost in unison, the new way of demanding administrative responsibility was born. through Personal Contraventions. It has its legal expression in Decree Law No. 99 of 1997, with the advent in Cuba of the so-called special period, it is something real that the Cuban economy and society were significantly affected, with the country having to execute an economic opening which today is This day has allowed us to survive the staunch blockade of the United States imposed for more than fifty years. This legal norm defines the contravention,as "the infringement of the norms or legal provisions that lack social danger due to the scant entity of their results." But what happened, a break between this legislation and the rules that intended to establish this standard for its systematic conception, which still persists today.
In the early 1990s, at the end of the 20th century, a proliferation of legal provisions on infringement began in the country, many of which included the institutional figure, and the fine in national currency and convertible pesos also appeared.. Regulations issued by the Council of State and others by the Council of Ministers of the Republic of Cuba, ratified by the National Assembly of People's Power. After the decriminalization process, two procedures are opened regarding the imposition of the so-called infringements, the first defines personal fines, based on Decree Law No. 99 of 1987. The one that defines: personal fines: The letter of the norm, provides them in the article, which states that natural persons are imposed the fine,in relation to the natural person, in relation to what is established in our civil legislation.
As another distinctive moment we find it from the promulgation of Decree Law No. 274 at the end of the 90s of the last century, when the imposition of fines on Legal Persons is decided. Recognized as institutional fines: they are those imposed on legal persons, related to what is established in the Magna Carta and in Decree Laws No. 67 and 147 respectively, as in Agreement No. 6176 of 2001 for the Boards of Directors in municipalities and provinces, through their bodies of inspectors within the framework of the Cuban Public Administration.
Another of the problems that are currently recognized is that within the Health System in Cuba they are aimed at the sanitary inspector being Judge and Party, in accordance with the provisions of Article 57 of Law No. 41, on the Verticality of the State Sanitary Inspection, which is similar in the double subordination to the Local Bodies of the People's Power, these with their administrative influence do not contribute to the fulfillment of the sanitary ordinances in an adequate way in the majority. One could well think of changing the subordination of this inspection body to the Council of Ministers, appointing these inspectors in a competitive examination containing technical and legal issues.
The general rule does not establish the procedure to resolve the procedure, that is, the investigation of the claim made by the appellant, so the health authorities carry out the investigation based on the knowledge in writing of the allegation of nonconformity of the fine imposed, then according to The cause of the fine is requested by the specialist in the field (occupational medicine, food, water, communicable diseases, non-state work, environment, land use planning, among others) and the decision in question is decided after the analysis of the Health File and what was noted in the state inspection. Those that are legally based under the following regulations:
- Decree No. 104 of 1982. Regulations for International Sanitary Control. Decree No. 123 of 1984. Violations against adornment, hygiene and other activities. Decree Law No. 274 of 2001. Activities that are carried out in Self-Employment. Decree No. 201 of 1995, Infractions against decoration, hygiene and other activities. City of Havana. Decree No. 200 of 1999. Violations in matters of the environment. Decree Law No. 272 of 2001. Violations in matters of land use and urban planning.
This allows the authors to continue affirming the multiplicity in legislative matters related to Administrative Penalty Law, which in one way or another can have negative consequences for inspectors when imposing sanitary violations, so it is necessary to think about group all the offending figures in a future Contravening Code.
4. Conclusions
FIRST: Dengue as a viral disease transmitted by the bite of infected females of mosquitoes of the Aedes genus, after more than twenty years of prevention, confrontation and risk control in the country in the face of the various outbreaks and infections of the four known varieties, It has manifested itself in the Granma Province with high rates of manifestation in 2013 and early 2014, motivated by a set of objective and subjective causes inherent to the population when acting by the agents of the National Health System, which detract from the rates quality of life and collective biosafety, with direct effects on the environment, which have been expressed in the increase in state sanitary inspections and the imposition of fines for violations of the regulations that govern hygiene and epidemiology activities.
SECOND: Within the analyzed problem, the following potentialities were identified for its solution: a) Development of a political will in the territory to promote a program for the prevention and control of epidemics and diseases, especially Dengue. b) Regular and controlling operation of the instances of the Council of the Provincial Administration and in each territory of the province in relation to the actions of prevention and control of Dengue. c) Strengthening of experience and regularity in the work of the entities of the national health system in the Granma territory for the development of the various anti-vector control programs and state health inspection. d) Activation of mass organizations in order to collaborate directly with the prevention of epidemics.e) Intersectoral collaboration of Delegations of Ministries and Institutes, as well as entities and companies in the territory in the promotion, prevention and control of anti-vector control policies.
THIRD: From the analysis of the norms that regulate the state sanitary inspection and the requirement of administrative responsibility for violations of the hygienic-epidemiological norms in the fight against Dengue, the Hygiene and Epidemiology activity in Granma is regularized by the entities of the National System of Health in relation to the fight against Dengue presents deficiencies and limitations that are expressed in the following elements:
- Lack of a regulatory framework adapted to the conditions and characteristics of the Granma territory in the fight against Dengue. The State Sanitary Inspection is difficult to apply in epidemiological practice, especially reference in the fight against Dengue, as it contains a spectrum of recipients that they are treated in different ways between the different normative bodies that regulate the activity; a fact that brings with it the breaking of the force of imperative irresistibility of the norm, due to the confusion of the terms used to define the subjects responsible with the negative results of actions of the state sanitary inspection.The State Sanitary Inspection in Cuba manifests itself with an inadequate legal regulation,inasmuch as the content of the activities to be inspected are in a considerable degree of legal dispersion given the high regulatory density that the offending activity presents, especially in sectoral and cross-sectoral regulations with pronouncements towards the control of hygiene and epidemiology; In the practical order, the aforementioned dispersion and lack of asystematicity threaten the due legal security of people as they are linked to sectoral or trans-sectoral regulations to which they do not have access or knowledge, without prejudice to the responsibility that arises from the results of the inspections, based on the low perception of risk and negligent attitudes that such ignorance provokes.especially in sectoral and cross-sectoral norms with pronouncements towards the control of hygiene and epidemiology; In the practical order, the aforementioned dispersion and lack of asystematicity threaten the due legal security of people since they are linked to sectoral or trans-sectoral regulations to which do not have access or knowledge, without prejudice to the responsibility derived from the results of the inspections, based on the low perception of risk and negligent attitudes that such ignorance causes.especially in sectoral and cross-sectoral norms with pronouncements towards the control of hygiene and epidemiology; In the practical order, the aforementioned dispersion and lack of asystematicity threaten the due legal security of people since they are linked to sectoral or trans-sectoral regulations to which do not have access or knowledge, without prejudice to the responsibility derived from the results of the inspections, based on the low perception of risk and negligent attitudes that such ignorance causes.In the practical order, the aforementioned dispersion and lack of asystematicity threaten the due legal security of people since they are linked to sectoral or cross-sectoral regulations to which they do not have access or knowledge, without prejudice to the responsibility derived from the results of the inspections, based on the low perception of risk and negligent attitudes that such ignorance provokes.In the practical order, the aforementioned dispersion and lack of asystematicity threaten the due legal security of people since they are linked to sectoral or cross-sectoral regulations to which they do not have access or knowledge, without prejudice to the responsibility derived from the results of the inspections, based on the low perception of risk and negligent attitudes that such ignorance provokes.
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