Decision T-760 of 2008
Review of 22 tutela* actions caused by situations that disregard the constitutional right to health in Colombia; Synthesis of the Colombian case law on the right to health; Court orders to correct structural failures in the Colombian public health system; Declaration of the right to health as a fundamental right; Access to quality and prompt sanitary services guaranteed by the right to health.
*A tutela is a special constitutional writ of protection of human rights. The tutela is a constitutional actions introduced by the Colombian Constitution of 1991, by virtue of which any citizen may directly request any judge in the country to protect his or her fundamental rights when they are being violated by a state agent or an individual to which the person is subordinated, and when there is no other legal action that can effectively be used to prevent the right violation from continuing. Judges must decide within a short period of time (ten days). Tutela petitions are decided by the tutela judge's hierarchic superiority, and all tutela decisions are automatically sent to the Constitutional Court, which can discretionally review any case. These cases are decided by different sections of the Court, each composed of three Justices. The Court can decide to review several tutela petitions on the same right simultaneously
The Colombian Constitutional Court has among its functions the review of tutela actions. The Court annually reviews a small proportion of the more than 300,000 tutela actions resolved by lower judges; 36% of which are related to the right to health according to data of the Colombian Ombudsman's Office for 2005. Decision T-760 of 2008 accumulated 22 of these cases. However, the Court did not limit itself to reviewing and resolving these individual cases. Instead, those cases led the Court to conclude that more than isolated, particular problems of certain users of the health system, these 22 cases were representative of the various, recurrent violations that result from structural problems at different levels of the Colombian public health system, generated mainly by regulatory faults. Thus, the Court issued a series of structural remedies.
In decision 760, the Court clearly distinguishes between the legal issues and orders rendered regarding the 22 particular cases and the general system-wide flaws. The general legal issue addressed by the Court was whether the regulatory failures detected in the 22 cases represented a violation of the competent authorities' constitutional obligations to respect, protect and fulfill the right to health.
The Court determined that the authorities violated their constitutional duties and orders accordingly. The decision included a synthesis of the Colombian Constitutional case law on the right to health. Under jurisprudence previously developed by the Colombian Constitutional Court, the right to health for plaintiffs is enforceable through tutela actions when (1) there is an identifiable nexus with "fundamental rights", such as the right to life; (2) when the case is brought by a person representing a vulnerable group such as children, pregnant women, or the elderly; and (3) when the health service at issue is included in the national health policy, which defines the state's obligations with regards to the minimum core content of the right to health. The Court also reaffirmed the right to health as fundamental and examined the international legal obligations of the State regarding the right to health, especially General Comment No. 14 of the UN Committee on Social Economic and Cultural Rights.
The Court ordered remedies for the 22 individual cases and compelled the authorities, including the Ministry of Social Protection and the health supervision and regulation agencies, to modify regulations that cause structural problems within the system. Central among these orders is the update, clarification and unification of the health coverage plans (known as Plan Obligatorio de Salud POS). Additionally the Court ordered that resources be expedited into the system and that evaluation and supervision of the private companies which supply sanitary services be enhanced.
Keywords: Decision T-760 of 2008, Health, Rights
The decision has had three effects. First, the 22 individuals received a remedy for their particular violations of the right to health. Second, the Ministry of health and other government agencies are slowly introducing the structural changes ordered by the Court. According to the Ministry of Health, the updated health coverage plan (POS) ordered by the Court will be presented on August 1st 2009 and will enter into force in September 2009. The updated POS removes 100 procedures and incorporates 1000 new ones (El Espectador, July 23, 2009). However, the Government announced that the new and unified health system (POS) - and the most important system-wide order - will not be enacted before 2014 (Portafolio, July 21, 2009). Finally, the T-760 decision sparked wide political and academic debate over the healthcare system, especially over sustainability issues and the protection of the right to health.
The decision is significant for three reasons. Practically, the Court deters the health system from a path to financial un-sustainability and corrects structural flaws that harm the users' access to health services. From a case law point of view, the reaffirmation of the right to health as a fundamental right is crucial. From a theoretical perspective, the Court is innovative in that the general orders are more similar to public policies than to standard Court holdings; these even include follow up mechanisms.