Decision T-760 of 2008

Nature of the Case

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

Enforcement of the Decision and Outcomes

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.

Significance of the Case

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.