Vera Rojas and Others vs. Chile
Inter-American Court of Human Rights case holding that Chile violated the rights to life, dignified life, personal integrity, health, social security, non-discrimination, and protection of children because Chile failed to adequately regulate private actors in the healthcare system.
The Plaintiff in this case is Martina Vera Rojas and her parents. Martina has Leigh Syndrome, a neurological and muscular condition that requires extensive care and treatment. Martina’s parents took out a health insurance policy with a private insurance company called Isapre MasVida that included special coverage for catastrophic illnesses and at-home treatment. In 2010, Martina was told that at-home treatment would no longer be included for chronic illnesses pursuant to a new regulation (Circular IF/No. 7), at the time, from the Superintendence of Health.
The family filed an appeal for protection before the Court of Appeals of Arica, but when the Court found in their favor, Isapre appealed and the Supreme Court revoked the decision. The family then filed a request for precautionary measures before the Inter-American Commission and a complaint with the Superintendence of Health. The Arbitrator Judge ruled in favor of the reinstatement of at-home treatment for Martina. Isapre’s appeal was rejected, as was their appeal to the Superintendence of Health. Though Isapre reestablished the at-home care and paid for expenses incurred during the time of loss of coverage, Martina’s parents continued to file claims pertaining to the uncertainty of medical care coverage and future services. The IACHR agreed to hear the case to determine if the State failed to comply with its duty to guarantee the rights to health, social security, life, a dignified life, judicial guarantees, judicial protection, and special protection of children, to the detriment of Martina, because of the alleged lack of regulation, supervision, and control of Isapre, and to determine if the violations have ceased and been remedied.
The Court analyzed the responsibility of the State related to the duty of prevention. The Court reasoned that, since health is a public good whose protection is the responsibility of the State, it has the obligation to prevent third parties from unduly interfering with individuals’ enjoyment of the right to health. States have a duty to regulate and supervise all health care provided to people to protect life and personal integrity, regardless of whether the entity providing such services is public or private.
The Court further stated that rehabilitation treatment for disabilities and related care are essential services for children's health. States must guarantee that the health services related to rehabilitation and pediatric care meet the standards of availability, accessibility, acceptability, and quality, taking into account the particularities of the medical treatment the child requires. The care and assistance necessary for a child with a disability must also include support for the families in charge of their care during the treatment and access to information pertaining to the illnesses or disabilities, including causes, care, prognosis, the conditions of effective treatment, service coverage, and the resources available in the case of a disagreement.
Though at the time of the hearing the parts of Circular No. 7 that caused Martina to lose her at-home care had been made ineffective in 2017 by Circular IF/282 of the Funds and Insurance Administration of Chile, the Court still addressed the law. The Court found that, because Circular No. 7 permitted the exclusion of home hospitalization for treatment of chronic diseases, the regulation allowed Isapre to withdraw the coverage of medical care services essential for the preservation of health, personal integrity, and life regardless of the severity of the patient's illness and the possible risks involved in the withdrawal of the treatment. The Court stated that this provision, by not establishing any additional requirement for the withdrawal of the treatment beyond the consideration of the "chronic" nature of the disease, had constituted a risk to human rights because it could restrict access to essential medical treatment. The Court held that provisions that allow the modification or withdrawal of medical care must include contemplation of the risks involved for the patients. The Court did note that, due to the passage of Circular IF/282, reparations related to the Circular No. 7, beyond the Court’s sentence itself, were not needed.
The Court held that the State violated the rights to life, a dignified life, personal integrity, childhood, health, and social security, in relation to the obligation to guarantee rights without discrimination, and the duty to adopt provisions of domestic law protected by articles 4, 5, 19 and 26 of the American Convention, in relation to articles 1.1 and 2. The State also breached the obligations of progressive development of the State in terms of Article 26 of the American Convention. The Court found that the State’s violations did not cease or become fully repaired after the reestablishment of the Martina's treatment because her parents experienced constant conflict with Isapre due to the potential for future risk of loss of treatment.
Finally, the Court held that, as the next of kin of the victims of human rights violations can in turn be victims, the State violated the right to mental and moral integrity of Martina’s parents. In this regard the State violated article 5.1 in relation of article 1.1 of the Convention.
In addition to reparations for both Martina and her family and in-kind compensation, the Court required the State ensure that Martina’s treatment would be covered in the case of economic hardship or the death of her parents. The State was also required to pass legislation to guarantee that the Children’s Ombudsman’s Office participate in all proceedings before the Superintendence of Health, or in judicial proceedings in which the rights of children could be affected by private insurers.
The Court found that a violation against the principle of non-retrogression of economic, social, cultural, and environmental rights, citing the Superintendence of Health’s impermissible regulation. The Court’s decision also underscores that rehabilitative treatments, along with palliative care, are essential parts of the right to health, including of children.
For their contributions, special thanks to ESCR-Net members: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.