Unprecedented Judgment: the Inter-American Court of Human Rights Rules Against the State of Chile for Isapre that Denied Dome Hospitalization to a Minor
GHRTV Reporter
26-11-2021
Isabella Brozinga Zandonadi
America and Human Rights Researcher,
Global Human Rights Defence.
The Inter-American Court of Human Rights (IACHR) declared the responsibility of the State of Chile for the violation of the rights to life, a dignified life, personal integrity, childhood, health and social security in the case of Martina Vera Rojas. Martina is a minor from Arica who suffers from Leigh syndrome - a progressive neurological disease - and who since 2011 has been in litigation against her Isapre[1] for denial of home treatment.
The lawsuit filed before the Court by the Inter-American Commission on Human Rights (IACHR) accused the Isapre "MásVida" of withdrawing in 2010 in a "unilateral and arbitrary" manner the home hospitalization regime that the minor required for the treatment of her illness, as well as for the special care that she requires due to her status as a "girl with a disability"[2].
The Court noted that the insurer's decision was based on a regulatory provision contrary to human rights, particularly regarding the obligation to regulate health services provided by individuals. Likewise, the Court warned that, although the home hospitalization regime was later restored to Martina by an arbitration decision and the provision applied was modified, the risk of affecting the girl's rights continues to this date.
Therefore, the State was declared responsible for the breach of its obligation to prevent the violation of human rights and of its obligations to progressively develop health and social security.
In this sense, in its ruling, the Inter-American Court determined the following reparation measures: “to ensure the validity of Martina Vera's medical treatment, in the current conditions, as well as those treatments that she may need in the future due to her illness, in the event of the death of her parents or because they are unable to cover the insurance; to give Martina a neurological wheelchair that allows her to make transfers to the hospital when necessary, and medical and psychological and/or psychiatric treatment to Martina's parents.”
Moreover, it requested “to adopt the legislative or other measures necessary for the Children's Defense lawyer to be aware of and participate, if necessary, in all the processes before the Superintendency of Health, or in the judicial processes, in which they could see the rights of children affected by actions of private health insurers”.
This is the first time that a State will have to respond internationally for lack of control of a private company such as an isapre. This opens a wide margin to litigate outside of Chile against health insurers.
The Court's arguments
When analyzing the case, the Court highlighted that, since health is a public good, the protection of which is the responsibility of the State, the State has the obligation to prevent third parties from unduly interfering with the fulfillment of people's rights.
“States have the duty to regulate and supervise all health care provided to people under their jurisdiction, as a special duty to protect life and personal integrity, regardless of whether the entity that provides such services is public or private".
In particular, the court highlighted that "rehabilitation treatments for disabilities and palliative care are essential services with respect to children's health."
The facts of the case constituted a “violation to the rights to life, decent 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, contained in Articles 4.1, 5.1, 19 and 26 of the American Convention on Human Rights, in relation to Articles 1.1 and 2 of the same instrument.”, indicated the court.
Notes:
[1] In Chile, the Instituciones de Salud Previsional (ISAPREs) are private insurers in charge of providing financing services, benefits, and health insurance.
[2] Read the entire IACHR sentence in Spanish at: https://www.diarioconstitucional.cl/wp-content/uploads/2021/11/Corte-IDH.pdf
Sources and further reading:
La Tercera | latercera.com. 2021. Inédita sentencia: Corte Interamericana de DD.HH. falla contra el Estado de Chile por isapre que negó hospitalización domiciliaria a menor. [online] Available at: <https://www.latercera.com/nacional/noticia/corte-interamericana-de-ddhh-falla-contra-el-estado-de-chile-por-caso-de-fiscalizacion-a-isapres/BN7DETW2AJH3VBL62NJM6QBXZQ/> [Accessed 21 November 2021].
