Case 179/2011

Appellant Ministry of Public Health (“MSP”) refused to provide the medicine CETUXIMAB to the plaintiff, arguing that, although it was obligated to ensure public health, it had no legal power to dispense medication directly to the population and that its refusal to provide the medicine was  also consistent with the fact that the drug was not listed on the Therapeutic Drug Form (which was updated annually via approval from the Executive). The plaintiff evidenced that MSP had provided this medicine to others who were similarly situated and that the medicine was required for the plaintiff to mitigate and contain his disease.

The plaintiff filed a writ of amparo (protection for fundamental rights), which was upheld by the Judge of First Administrative Court of Second District, who ordered MSP to deliver the medicine. MSP appealed the lower court judgment

The Court noted that the Uruguayan Constitution guaranteed an individual’s right to life and health and thus, citing precedent, determined that an action of amparo was the appropriate action for to challenge the withholding of medicine.

The Court also noted that the appellant was  responsible for preserving health of the public, “a fundamental good that cannot be subject to the contingencies of a bureaucratic application process.” Thus, the formal requirement that the appellant had given for refusing to provide the medicine (that it was not listed on the Therapeutic Drug Form), could not justify ignoring the  plaintiff’s fundamental rights. In this case, the Court determined that the plaintiff had clearly proven that the medicine that was required by plaintiff to control the disease and that the drug endorsed both internationally and nationally. Moreover, the Court pointed out the Constitutional requirement that the State give care to poor persons, which in this case, should mean taking into account high medicine cost.

The Court also held that, considering the appellant had been supplying the drug to other patients with the same disease, the appellant had breached the Constitutional principle of equality.

“Article 44 inc. 2 of the Constitution is clear in saying that the State shall provide without charge means of prevention and care to “people with insufficient resources,” which is the case in this case taking into account the high cost of the recommended medications.” Section VI

“el art. 44 inc. 2 de la Carta es clara cuando dice que el Estado proporcionará gratuitamente los medios de prevención y asistencia a las “personas de recursos insuficientes”, lo que se da en la especie atento a los altos costos de la medicación recomendada.” Sección VI

“Based upon such antecedents, the Redactor concludes that the MSP should provide the medication to the claimant, even if it is not included in the FTM, and this because that Ministry is responsible for preserving the health of the inhabitants, a fundamental good that cannot be subject to the contingencies of a bureaucratic application process; so it must be inferred that by meeting the formal requirements on which the appellant claims to base its refusal to supply the drug (inclusion in the FTM, as well as the need to comply with the technical and scientific procedures for its inclusion), the fundamental rights recognized in the Constitution are, strictly speaking, being ignored” Section VI

“Con tales antecedentes, considera la Redactora que el M.S.P. debe proporcionar el medicamento al reclamante, aún cuando no esté incluido en el FTM, y ello, por que a dicho Ministerio corresponde preservar la salud de los habitantes, bien fundamental que no puede estar supeditado a las contingencias y dilaciones de un trámite burocrático, por lo que debe inferirse que mediante el cumplimiento de los requisitos formales que el apelante alega para fundar su negativa a suministrar el medicamento (inclusión en FTM, así como la necesidad de cumplir con el procedimiento técnico-científico a tales efectos), se está, en puridad, desconociendo derechos fundamentales reconocidos en la Constitución.” Sección VI