Judgment T-760/08 on the Right to Health

high cost health services and treatments of catastrophic illnesses, such as diagnostic exams;
access to the health services for minors; access to health services when they require travel and
living in places distinct from that in which the person resides; freedom of choice of the
healthcare provider, access to health services contemplated in the obligatory health plan (POS),
dependent upon copayments; access to health services not included within the POS.

2. Core issue(s)
Whether the regulatory failures of the health care delivery system presented through the joined
cases represent a violation of the constitutional obligations of state authorities to respect, protect,
and fulfill the right to health and its effective enjoyment (p. 2)
3. What was the decision? Holding & Outline of the Court’s Decision
- Court ruled that the State fails to protect the right to health when it allows some people to
be denied access to those services covered by the obligatory health plans that are
already financed. (p. 12 # 4.4.5.1.1)
- The State’s maintenance of incentives and disincentives that do not promote the
effective enjoyment of the right to health and its failure to adequately monitor
healthcare access and delivery have allowed for the “continuation of this
unjustifiable situation of constant and repeated violations of the right to health of
people on the part of many of the entities responsible for ensuring the provision of
the services.”
- Everyone has the constitutional right not to be denied access to health services, so the
provision of the health services cannot be conditioned on the payment of a sum of
money when the individual lacks the financial ability to pay. (p. 12 # 4.4.5.1.1)
- There must be an “adequate guarantee of the flow of resources, which is necessary to
ensure that everyone actually enjoys the highest attainable standard of health, given
the budgetary, administrative and structural constraints that exist.” (#6.2)
- Health care providers have a constitutional right to recover the costs not financed through
the per capita payment units. To guarantee the right to health of users, which depends on
the timely flow of resources in the system, the reimbursement procedure must be clear,
precise and agile. (#6.2)
- Towards the end of progressively realizing universal coverage for all, Court ordered
Regulatory Commission:
- “to adopt a program and timetable for the gradual and sustainable consolidation of
the benefit plans of the contributory regime and the subsidized regime taking into
account: (i) the priorities of the population according to epidemiological studies,
(ii) the financial sustainability of the expansion of coverage and its funding by the
UPC and other sources of funding for the existing system.” (p.31)

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