Case 26/2003-R

The applicant ombudsman, representing N.N., brought an action against the President and General Auditor of the Supreme Court of Military Justice, and against the General Manager and Manager of Health of Military Social Security Corporation (COSSMIL). The applicant alleged that by denying N.N. a right to medical treatment, his right to health, life and social security was infringed.

N.N. was diagnosed with HIV in October 1999. As a policyholder with COSSMIL, he received medical treatment from March 2000 until July 2002, without which he would have died. In September 2002, he stopped receiving the treatment, and N.N. was unable to afford the medication himself.

The defendants argued that COSSMIL is a public entity governed by regulatory rules that are meant to provide optimal healthcare for more than 100,000 people. They argued that the supply of medical benefits to individuals must be restricted, so that the healthcare needs of all policyholders could be met as effectively as possible. The defendants also argued that treatment of HIV/AIDS was particularly expensive, and therefore it was economically unwise to keep providing supplies to N.N. COSSMIL stated that it had limited funds and received no money from the general treasury.

The COSSMIL Supreme Board of Decisions and the Supreme Tribunal of Military Justice rejected N.N.’s appeal. The applicant applied and received an amparo—a remedy that offers immediate protection against illegal acts and omissions that restrict fundamental, constitutionally recognized rights. The amparo ordered that COSSMILL cover the costs of N.N.’s antiretroviral medication for as long as he needed it.

The Second Civil Court of the Supreme Chamber of La Paz upheld the amparo, holding that the relevant authorities must continue to provide N.N. with the necessary medications. The constitutionality of this requirement was then brought before the Constitutional Court of Bolivia.

The Court held that COSSMIL must comply with the applicant’s demands and continue providing treatment to N.N. By ceasing to cover the costs of treatment, the Court held that COSSMIL violated N.N.’s right to health, life and social security.

The Court stated that the right to life under Article 7 of the Bolivian Constitution is an inalienable right that the State is obligated to respect and protect. Furthermore, Article 158 requires the State to protect the health of the population, through a public system committed to universality of care.

The Court interpreted the right to health as imposing a positive obligation on the State to create and maintain conditions that allow the population to lead physically, mentally and socially healthy lives. The Court further stated that it is of particular importance to uphold the right to health in the case of vulnerable individuals, such as the terminally ill.  The special protection required by people such as the terminally ill make social security a fundamental right. Violation of the right to social security infringes on other rights such as the right to life, and right to health.

The Court found that without the requested medication and treatment, N.N. faces serious risk of further deterioration. In terms of right to life, the Court previously ruled in favor of providing continued treatment to people suffering from chronic diseases. While AIDS is not a chronic disease, the Court found that it was sufficiently long-term and fatal that the same logic should apply.

Given that COSSMIL was part of the Bolivian System of Social Security, the Court held that COSSMIL was financially responsible for providing treatment to N.N. at least for the first six months, with the possibility of a six-month extension following this. After a year, the State is still obliged to provide treatment, but through the Ministry of Health and Social Welfare. This would ensure that N.N. received the necessary support to stay alive, and maintained a certain quality of life.

“The right to health is the right by virtue of which individuals and social groups - specifically the family- as holders of this right, can demand, as taxpayers, that the organs of the State establish adequate conditions so that they can achieve an optimal state of physical, mental and social wellbeing, and ensure that these conditions are maintained. The right to health does not just meant the right to be free of disease, but also the right to an existence with quality of life.” (para 27)

“The right to social security as a constitutional right derives its fundamentality when it concerns persons with manifested disabilities in need of support to stay alive, including those suffering from chronic or incurable illnesses. Accordingly, when a public or private entity is responsible for providing social security and health services to a person in these situations, violations have severe consequences. It is because of the special protection required by these people that the right to social security is a fundamental right, because failure to observe this right endangers other fundamental rights, like right to life, human dignity, and physical integrity.” (para 29)

“In the case under consideration COSSMIL and the Supreme Court of Military Justice have rejected the request by the applicant for the provision of antiretroviral medications that are urgently required in order to continue the treatment for AIDS. According to the medical certification (at 10 to 14), it is essential for the continuation of the said treatment, since the suspension of medications puts the patient at risk of the development of opportunistic infections and in imminent danger of losing his life, as well as the possibility of developing a resistance to the treatment.” (para 30)