Amparo action to protect right to health. State obligation to provide free medical assistance and testing to HIV/AIDS patients. Acknowledgment of absolute nature of right to life. Realization of right to equal protection through equal supply of drugs to treat disease.
The Chilean Health Ministry issued a decree ordering free medical treatment and tests for all sexually transmitted diseases, including the Acquired Immunodeficiency Syndrome (AIDS). However, the decree was not complied with in the case of HIV. Given this situation, the organization Vivo Positivo, sponsored by Clínica de Acciones de Interés Público de la Universidad Diego Portales, filed three amparo actions requesting the East Metropolitan Health Service and the Health Ministry to comply with the decree. The Seventh Division of the Santiago Court of Appeals upheld all three actions. The Court understood the State is obliged to protect the right to life and may not allege lack of resources to fail to comply with it, because it is an absolute right that is beyond any financial considerations. The Court also stated that the State’s argument that the drugs in question were effectively being supplied to other people equally sick involved a discriminatory, differential treatment lacking objective and reasonable justification, and, therefore, violated the right to equal protection. The Court ordered the Health Ministry and the Metropolitan Health Services to comply with the decree, delivering “immediately and in the most effective manner, both from a medical and administrative point of view, the drugs necessary for (the petitioners’) survival under effective standards to control the disease, as well as conducting the relevant medical tests and regular health check-ups.” The Supreme Court did not confirm the Court of Appeals’ decision, because it saw no violation in the State’s actions. Given the seriousness of the situation, a petition was filed requesting precautionary measures with the Inter-American Commission on Human Rights (IACHR) to protect the right to life of the affected persons.
Although the case was rejected by the last domestic instance, the remarks made by the Court of Appeals in its decision are very valuable. Of particular importance are the Court’s arguments referring to the State’s impossibility to allege budgetary issues to fail to comply with human rights obligations such as the right to life. This is in line with the interpretations made by the Committee of Economic, Social and Cultural Rights in its General Comment No. 14. Thus, the Judiciary gets involved in the review of public policy design and execution to guarantee rights to health and to life of people living with HIV.
Clínica de Acciones de Interés Público de la Universidad Diego Portales
and
Vivo Positivo
Defendants: Servicio de Salud Metropolitano Oriente and Ministerio de Salud.
