SUMMARY

The acknowledgement of health protection as a provisioning right may give rise to conflicts with the individuals' freedom-autonomy, both as patients and as potential patients. These conflicts find their origin in the adoption of paternalistic measures or interpretations of the set of laws, on whose justifiability it is convenient to reflect; and not only for its highly argumentative nature, but also for the -at least apparent- paradox involving that what has been recognized as a right through a long-lasting hard process winds up as an imposed duty.

1. The first demonstration of paternalism that is analyzed is that appearing along with the restraint of the freedom-autonomy of the people when being regarded as patients and is shown through the answer given to the refusal of medical procedures when life is in danger. From the juridical point of view, the rejection of a treatment that is considered vital composes a differendum between rights or assets constitutionally protected. On the one hand, the right to life of the patient, that compels to make all the effort to save it, and, on the other one his freedom, that justifies the right of the patient to refuse the treatment that he is been offered. There are two possible solutions to this conflict, depending on whether life is strictly conceived as a physical existential attribute, which involves setting up the right to life as a super-right with preferential character over the rest of rights, or as an inseparable good of the individual's capability of self-determination, what implies that there is no confrontation between life and freedom, since the life constitutionally protected is the life freely elected. In the first case, life must be protected even in front of his titleholder, so that the coercive medical assistance (as well as whatever the measure led to preserve life ) is justified; in the second one, life cannot be guarded against its titleholder's will.

Within the Spanish high courts jurisprudence, the first interpretation reigns supreme: the one that conceives the life in fine, in terms of holiness, as an intangible value. In this work, however, the alternative interpretation is advocated: that of the freely wanted and self-determined life, which is the most in agreement with a lay and liberal state's principles naturally opposed to the paternalistic duties and that, otherwise, is making itself room in some courts' jurisprudence.

2. The second demonstration of paternalism that is analyzed is the constraint of the freedom-autonomy of people no longer regarded as patients, but as citizens, and is shown when the State imposes (or intends to impose ) duties that limit the freedom of the subjects for the sake of the protection of their own health. This kind of duties brings about two questions: 1) are these restrictions to freedom in the right?; and if they are, when or in what conditions?; 2) in the event that they are in the right, what kind of consequences can get tied up to them?; and in short, the non-fulfillment of these restrictions or duties can it justify the denial of healthcare assistance?

Regarding the first order of issues, what it is supported here is that if these duties were purely paternalistic they would not be justified, and that one of the few chances (if not the one and only) of justifying them is appealing to the responsibility of the individuals in the protection of certain social interests of first order, and in particular in the preservation of the public healthcare system by means of the restraint of the healthcare expense. From this sketch of vindication two important consequences derive. The first is that the standard in point has to surpass a test of justifiability (or of constitutionality) that means showing that it is not a purely paternalistic measure, but rather leads itself to preserve an important social good (the feasibility of the right to health for all by means of the control of the healthcare expense and the proper use of the resources), that it is convenient and necessary for it and that it works out proportionately regarding the benefits it was intended to bring about.

Concerning the second order of issues, what it is supported here is that the penalty to follow the non-fulfillment of the duties that way justified cannot lie in any case in the deprival of the right to healthcare assistance, because such sanction would be unconstitutional. What could prove to be adequate (and constitutionally legitimate ), above all in cases of scarcity or resource gap, would be umpiring copayment formulas or special taxes or even order of precedence criteria regarding healthcare assistance.