Inter-American Court of Human Rights judgment of 08 March 2018 in Poblete Vilches and Others v. Chile (Series C, no. 349).
The applicants were assisted in preparing a complaint to the Inter-American Commission on Human Rights (Washington, USA).
Subsequently, the Inter-American Commission on Human Rights referred the applicant's complaint to the Inter-American Court of Human Rights (San José, Costa Rica). The complaint was then communicated to Chile.
The case successfully addressed a complaint about the obligations of the state in relation to the rights of older persons in the field of health care and life.
The case examines the obligations of the state in relation to the rights of older persons in the field of health care and to life.
THE CIRCUMSTANCES OF THE CASE
Poblete Vilches, a 76-year-old man, was admitted to a public hospital twice in January and February 2001. During the first visit to the hospital, he suffered from extremely severe respiratory failure. While Poblete Vilches was unconscious, he underwent surgery without the consent of his family members. The applicant was discharged very quickly and his family had to hire a private ambulance to take him home. During the second visit to Poblete Hospital, Vilches was in the intensive care unit, while according to his medical record he should have been in the intensive care unit. He also needed an artificial respiration apparatus, which was not provided to him. As a result, Poblete Vilches died. His family members filed two criminal charges, which were rejected. The Chilean authorities have partially accepted their responsibility under international law.
QUESTIONS OF LAW
The essence of the matter. (a) Article 26 (right to health care), in conjunction with paragraph 1 of Article 1 (duty to respect and guarantee rights without discrimination), Articles 4 (right to life) and 5 (right to human treatment) of the American Convention on Human Rights (hereinafter - ACHR). The Inter-American Court of Human Rights reiterated its case-law set out in Lagos del Campo v. Peru (31 August 2017, Series C no. 340) regarding the possibility of judicial protection of the provisions of Article 26 ACHR. For the first time, the Inter-American Court of Human Rights has ruled on the right to health, especially of older persons, as an autonomous right and an integral part of economic, social, cultural and environmental rights through the interpretation of the above provision.
The Court emphasized that the content of Article 26 ACHR provided for two types of obligations: the adoption of measures of a general nature in a progressive manner and the adoption of immediate measures. With regard to measures of a general nature, the Inter-American Court of Human Rights held that States had a special and continuing duty to strive, as expeditiously and effectively as possible, to the full effectiveness of economic, social, cultural and environmental rights. General measures did not mean that States could permanently postpone the adoption of measures to improve the effectiveness of the rights in question. Likewise, the Inter-American Court of Human Rights found that the principle of non-regression was applied to fully exercisable rights. With regard to immediate obligations, the Inter-American Court of Human Rights noted that they were to take appropriate measures to ensure a non-discriminatory treatment of the privileges recognized by each right. These measures had to be appropriate, conscious and specific. The Inter-American Court of Human Rights limited its analysis to the implementation of basic and immediate measures.
With regard to the right to health care, the Inter-American Court of Human Rights has confirmed its claims that:
(i) this right is legally enforceable in light of the ACHR, subject to references to a) Article 34 (i), Article 34 (l), and Article 45 (h) of the Charter of the Organization of American States; and b) Article XI of the American declarations of human rights and obligations in conjunction with the interpretation of Article 29 (d) ACHR;
(ii) having regard to the scope and content of this right for the purposes of the present case, by a) the Chilean law in force at the time of the events in question in accordance with the interpretation of Article 29 (b) of the ACHR and regional legislative consensus on that law; and (b) international corpus juris on health law.
In view of the above, the Inter-American Court of Human Rights has developed various standards applicable to the present case regarding basic and special health privileges, especially in the context of emergency medical care situations.
As a result, the Inter-American Court of Human Rights determined that:
(i) the right to health care was an autonomous right protected by Article 26 ACHR;
(ii) this right in emergencies required states to ensure that health services are adequately regulated by providing the necessary services in accordance with the conditions of availability, accessibility, quality and acceptability, under conditions of equality and non-discrimination, and by providing support to vulnerable groups;
(iii) older persons should benefit from increased health protection in cases of prevention and urgent care;
(iv) in order to establish the responsibility of the state in cases of death in a medical institution, it is necessary to prove the fact of denial of essential service or treatment, despite the predictability of the risk to the patient, or serious medical negligence, and to establish a causal relationship between the action and the damage;
(v) lack of adequate medical attention may lead to a violation of the principle of personal integrity;
(vi) informed consent is mandatory in healthcare institutions, which are obliged to inform patients or, if necessary, their representatives about the medical procedures performed and the patient's condition.
The Inter-American Court of Human Rights analyzed two cases of admission to a public hospital in the present case and found several violations in the light of the above standards. He concluded that in the second case, there was an urgent need for medical assistance, the immediate receipt of which was vital and which was never provided. The Inter-American Court of Human Rights concluded that the Chilean authorities did not guarantee that the medical services provided to Poblete Vilches would meet the immediate obligations of the right to medical care in cases of urgent need. The Inter-American Court of Human Rights also ruled that Poblete Vilches was discriminated against on the basis of age, as his old age proved to be an obstacle to receiving the necessary medical care. In conclusion, the Inter-American Court of Human Rights concluded that the negligence of Poblete Vilches' second admission to hospital significantly reduced his chances of recovery and survival, and that the Chilean authorities were to blame for the patient's death.
In the case, there were violations of the requirements of Article 26, paragraph 1 of Article 1, Articles 4 and 5 ACHR (adopted unanimously).
(b) Article 26 (right to health care) in conjunction with Articles 13 (freedom of thought and expression), 7 (right to personal integrity) and 11 (right to privacy) of the ACHR. The Inter-American Court of Human Rights found that, subject to applicable law, the Chilean authorities failed to comply with their obligation to obtain consent from family members of a patient hospital for medical treatment in the event of non-urgent surgery performed during the first visit to a public hospital, as well as the obligation to provide family members clear and accessible information about treatment and procedures performed for the patient.
In the case, there were violations of the requirements of Article 26 in conjunction with Articles 13, 7 and 11 ACHR (adopted unanimously).
Compensation. The Inter-American Court of Human Rights held that this judgment per se was a form of compensation and indicated, inter alia, that the Chilean authorities:
(i) published this Regulation and an official summary of it;
(ii) publicly admit their responsibility;
(iii) provide psychological assistance to relatives;
(iv) develop permanent human rights education programs;
(v) notify the Inter-American Court of Human Rights of the changes made to the hospital in the case;
(vi) would support the State Institute of Geriatrics and its involvement in hospitals;
(vii) ensure the publication of books or brochures describing the health rights of older persons;
(viii) take the measures necessary to develop an overall policy for the comprehensive protection of older persons;
(ix) paid compensation for material and non-pecuniary damage, as well as compensation for legal costs and expenses.