A/HRC/44/48/Add.1 the actions alleged that the right to health had been violated (i.e. 0.53 per cent). Of these, the right to health was addressed in 42 judgments of the Court and violations were found in 5 judgments. In its jurisprudence, the Constitutional Court has pointed out the obligation of the State to act preventively to allow an adequate development of the physical and psychological capacities of all persons, as well as providing medical care, treating diseases and supplying medicines. 19. The Special Rapporteur notes that despite the constitutional safeguards, the implementation of free and universal health-care services has been insufficient to guarantee the right to health for everyone. In practice, according to information provided during the visit, out-of-pocket spending remains over 40 per cent. 12 The Special Rapporteur was concerned to receive widespread reports and testimonies regarding serious problems in accessing medicines, including for children. In some cases, access has required legal complaints to be filed. That has affected persons diagnosed with cancer and rare diseases and those who need expensive treatment and palliative care. The Special Rapporteur recommends that Ecuador ensure transparency and equal access to expensive medicines. 20. The Ministry of Public Health is responsible for formulating the national health policy and regulating, enforcing and controlling all health-related activities in the country, as well as for the operation of entities in the health sector. As provided by article 361 of the Constitution, the State is to exercise leadership of the system through the national health authorities, be responsible for national health policymaking and set standards for regulating and monitoring all health-related activities, as well as the functioning of the entities in the sector. 21. In the Special Rapporteur’s view, the constitutional provisions are remarkably progressive and provide a unique opportunity to develop a legal and policy framework in line with a human rights-based approach. However, the current legal framework, consisting of some 40 related health laws (including the Law on Health) is in need of reform. It includes different laws which, in some cases, have provisions that date back to before the current Constitution and, according to the information provided, are obsolete and inapplicable. 22. The proposal for the new health code (código orgánico de salud), which has been discussed by the National Assembly over the last eight years, aims to update existing norms and organizational structures. During the visit, the Special Rapporteur met with members of the Health Commission of the National Assembly and was informed that a new health code would finally be adopted shortly thereafter. Under the current proposal, awaiting its second debate in the National Assembly, a new legal framework would be introduced, in line with the rights-based approach in the Constitution. 23. The Special Rapporteur was informed about some shortcomings of the draft health code, including the inclusion of conscientious objection in a broad manner, which may be misused to limit the provision of contraception or abortion goods and services. The Special Rapporteur notes that any provision permitting conscientious objection should: (a) be joined with clear guarantees of an adequate number and appropriate geographic dispersal of willing public and private providers; (b) limit its invocation to individuals and prohibit institutional refusals of care; (c) establish an effective referral system for access to a medical professional who is willing and able to provide the health goods and services that have been refused; (d) impose clear limits on the legality of refusals, such as ensuring that they are not permitted in urgent or emergency situations; and (e) implement adequate monitoring, oversight and enforcement mechanisms to oversee compliance in practice. 24. The Special Rapporteur was informed about the absence of detailed provisions on orphan and rare diseases in the draft health code, which are currently included in article 212 together with catastrophic diseases. The Special Rapporteur recommends the inclusion of a specific section for special and specialized care of rare diseases in the new health code. 25. Owing to the lack of an updated comprehensive legal framework, the Special Rapporteur was informed during the visit that the Ministry of Health has exercised its steering role, particularly in the area of regulation for protection against health risks, under 12 6 For an explanation of out-of-pocket payments, see www.who.int/health_financing/topics/financialprotection/out-of-pocket-payments/en/.