Alcalá, Cristina Beatriz v. Ministerio de Salud y Acción Social

Cristina Beatriz Alcalá filed a guarantee of protection of individual constitutional rights (amparo protection) against the Ministry of Health and Social Action to obtain the drug, Indinavir, to continue her treatment against AIDS and to test her viral load. She indicated that the treatment consists of a cocktail of drugs consisting of AZT, 3TC and INDINAVIR. The plaintiff argued that the Ministry of Health and Social Action of the Nation, through the Undersecretariat of Medical Care, is obliged to provide such drugs to persons suffering from AIDS and that Indinavir was not being provided. She based her request on Law nº 23,798, its Regulatory Decree Nº 1244/91; The Pact of San José of Costa Rica and article 43 of the National Constitution. She also filed a precautionary measure so that the Ministry of Health was ordered to provide the medication while the case was being heard.

The First Instance Court granted the precautionary measure and informed the Ministry of Health and Social Action that, through the Ministry of Health Resources and Programs and the Program dedicated to Combat Human Retroviruses, it should acquire and deliver the medicine to the plaintiff.

The National State filed an appeal to revoke the precautionary measure, indicating that the Ministry had already provided the medication required by the plaintiff.  The National State requested dismissal of the amparo protection because the issue had been resolved since the plaintiff had received the medication and the point was moot. The defendant maintained that he complied with the provisions of Law No. 23,798, which required the delivery of medicines for treatment of AIDS.  The plaintiff agreed with the dismissal of the precautionary measure, by virtue of having received the requested medication, but made a reservation to insist on its request for an amparo protection, in case the delivery of the medicine was not provided in the future. She noted that in November 1997, the National State failed to fulfill its obligation to supply the drug, and thus such a reservation was necessary.

The First Instance Court granted the amparo protection and condemned the National State (Ministry of Health and Social Action), to fulfill its obligation of delivering (regularly, timely and continuously) the drugs prescribed to the plaintiff so that she could continue her treatment. The Court found that Law No. 23,798 (gives the Ministry of Health and Social Action of the Nation, through the Under secretariat of Health, responsibility of the detection, investigation, diagnosis and treatment of Acquired Immunodeficiency Syndrome), was a matter of national interest and therefore the State was in charge of establishing the measures in relation to the control and treatment of patients.  The Court found that although the delivery of medicines is carried out through the provincial medical centers of the patient’s jurisdiction, this cannot be interpreted as transferring the National Ministry of Health’s responsibility of care to other jurisdictions.

The National State filed an appeal with the Federal Contentious Administrative Court of Appeal which upheld the First Instance Court ruling. The respondent filed an extraordinary appeal because the previous judgement violated the National State’s right to property and the principles of fair trial, the division of powers and the supremacy of law (articles 17, 18 and 31 of the National Constitution). The respondent claimed that the Court of Appeals decision was arbitrary because it did not take into account the fact that the Federal Organization that establishes the provinces had the obligation to provide the right to health, not the Ministry of Health and Social Action.

The Supreme Court of Justice found that the case was analogous to "Asociación Benghalensis et al. / Ministry of Health and Social Action - National State - Amparo Law 16,986" which established that the State had an obligation to provide medicine and treatment for people living with HIV. It held that the right to health was part of the right to life. The Court defined the State's obligation under the right to health as an investment of high priority that could not be deferred. The Court further held that the State had not met its obligations under article 1 of Law No. 23.798, which held the State responsible for ensuring the continuity and regularity of treatment for people living with HIV. Therefore the extraordinary appeal was dismissed and the previous rule confirmed.

The dissenting opinion of judges Nazareno, Fayt and Petracchi dismissed the appeal under article 280 of the Civil and Commercial Procedural Code of the Nation.