Case 169/2011

A previous judgment compelled the Ministry of Public health to deliver the drug “Cetuximab” to the plaintiff within three working days until the Ministry of Public Health decided whether or not to include the drug “Cetuximab” on the Therapeutic Drug Form (FTM). The judgement was appealed and appellants argued that the conditions required to proceed with the amparo had not been fulfilled.

Appellants argued that the Constitution and other regulations do not place the Ministry of Public Health under a legal obligation to supply medication directly to the public. Additionally, appellants argued there was no additional act on the part of the Ministry of Public Health since it evaluates the benefit when deciding whether to include a drug on the FTM.

The Court held that the refusal of the Ministry of Public Health to provide medicine was a violation of the principle of equality laid down in Articles 8 and 72 of the Constitution. The Court reasoned that as the MSP was providing drugs to some patients, the principle of human dignity and imposition of equal treatment required provision of the drug to the appellant.

In dicta, the majority of the Court held that it was not improper for the Ministry to not include the drug in the FTM and that the provision of medication to the plaintiff goes beyond the duties of the Ministry. The minority of the Court held that the drug should be included in the FTM as the drug is the only medicine available for the plaintiff, the drug is available commercially, and the Ministry has a general duty to preserve the health of the population, which can’t be abridged by bureaucratic processes.

“Precisamente, emerge que la conducta del M.S.P. importa una ilegitimidad manifiesta al suministrar el medicamento a otros pacientes y negarse a proporcionárselo a la accionante que sufre idéntica patología y con respecto a quien se acredita la urgente necesidad de contar con el medicamento para el adecuado tratamiento de sus padecimientos, porque no existen diferencias según aspectos de hecho y criterios de razonabilidad que justifiquen el trato desigual.” (Page 7)

“Indeed, the conduct of the MSP in delivering the drug to other patients and refusing to provide it to the plaintiff who suffers the same disease and who is credited with the urgent need to count with it for an adequate treatment of her sufferings, amounts to a manifest illegitimacy, because there are no differences according to the factual aspects and reasonable criteria which justify unequal treatment.” (Page 6).