Regulatory

On May 9, 2022, a new Bill was presented, Bulletin N°14.969-06, initiated by Message from H.E. the President of the Republic, which amends Law N°21.180, on Digital Transformation of the State (hereinafter indistinctly as the “Law”) and amends Decree with Force of Law N°1, of 2020, of the Ministry General Secretariat of the Presidency (hereinafter indistinctly as “gradual decree”).

This Bill has its origin in the enactment of Law No. 21.180, which, in broad terms, creates and strengthens digital modalities of attention and management of administrative procedures by public agencies for individuals. In this way, the Project seeks to amend the aforementioned legal body, based on an expert report of the Inter-American Development Bank (IDB) which states that currently there is no digital government institutionality with sufficient functions and governing powers required to adequately lead a challenge of such magnitude, seeking to modify the deadlines established in the previously mentioned regulations.

In this sense, this modification would consist of lengthening and adapting the implementation terms of the measures indicated in Law No. 21.180, also establishing a different order of the phases established for this purpose.

Thus, with the modification of transitory articles 2°, 3° and 6° of Law No. 21.180, and articles 6° and 7° of Decree with Force of Law No. 1 of 2020, it is intended to adopt a gradual implementation of the Law to the Organs of the State Administration, establishing a legal period of preparation that will extend throughout 2022 for all the groups contemplated in article 5° of the gradual decree.

Thus, the application of Phase 1 of the implementation of the Law, as provided for in the graduality decree after the amendment, would begin in 2023 for Group A and in 2024 for groups B and C, extending the implementation of the Law until 2027.

Consequently, the purpose of the Bill is to support public agencies with the largest gaps in technological solutions and to ensure the correct implementation of the Law.

Should you require additional information on this matter, please contact Andrea Abascal (aabascal@jdf.cl), and/or Rocío Vergara (rvergara@jdf.cl).

On January 13, 2021, Exempt Resolution No. 810, dated December 28, 2020, was published in the Official Gazette, whereby the Sub-Secretariat of Healthcare Networks of the Ministry of Health published the Regulations on actions related to healthcare provided at a distance, using Information and Communication Technologies (ICTs).

It should be noted that ICTs or technological tools are understood to be the applications, supports, systems or platforms through which actions and services linked to health care at a distance can be carried out, or which serve as support for them.

Thus, through ICTs, all kinds of actions necessary for the promotion, prevention, diagnosis, treatment, rehabilitation and care at the end of life can be carried out. On the other hand, automated health actions or benefits will also be allowed, that is, they will be able to be carried out through technological tools -such as applications, artificial intelligence, Internet of Things (IoT), among others- all those actions or benefits whose nature admits it, without detriment to the safety and quality of the care.

Likewise, the Regulation intends to regulate the rights and duties that people have in the development of the actions and benefits of the ICTs, such as, the accessibility of the patients to them; the information duties; the identification and authentication of the provider; the access to the clinical file and its portability to other health providers; constancy of the actions carried out and confidentiality of the clinical file; and, confidentiality of the laboratory exams and medical prescriptions, among others.

The consultation will be extended for a period of one week, starting January 13, 2021 until January 20, 2021.

In case you require further information on this matter, you may contact Jorge Tisné (jtisne@jdf.cl) and/or Andrea Abascal (aabascal.@jdf.cl).

On December 21, 2020, the Chilean Constitutional Court accepted, by a majority of its ministers, the requirement of inapplicability presented by the company Blue Shell S.A. with respect to articles 163, 166, 167 and 174 of the Sanitary Code in the context of a fine claim process filed by the SEREMI of Health of Los Lagos against the applicant, following an inspection carried out by that administrative authority in response to an accident that caused the death of a company worker.

The requesting company argued that the application of the articles referred to in the case at hand infringed article 19 N°3 of the Constitution, since the procedure in the sanitary summary, and the resolution issued therein, as a manifestation of the jurisdictional powers of the administration, infringed the right to due process, the principle of innocence, the principles of legality and typicality, and the principle of proportionality, all applicable to the administrative penalty law, as a manifestation of the ius puniendi of the State.

In response to Blue Shell’s allegations, the judges ruled that the legal norms challenged in the specific case generated two forms of action that the Constitution outlaws.

The first of these referred to the self-sufficiency of the inspection report drawn up in situ to establish an infraction, a value that is not in keeping with the idea of a fair and rational procedure, since it restricts the right of defense of the accused in the administrative procedure that follows, as well as in the subsequent judicial process;

Furthermore, in the opinion of the Constitutional Court, the power that these articles confer on the authority, both to establish the failure to comply with certain laws and regulations, and to set the amount of the fine within a wide range that does not contain parameters of modulation, is immoderate, and it is an infringement of the principles of typicality and proportionality.

In case you require additional information on this matter, you may contact Andrea Abascal (aabascal@jdf.cl) and/or Rocío Vergara (rvergara@jdf.cl).