Tuesday, September 26, 2023

The Inter-American Court will monitor the reparatory measures that the State of Chile must comply with in favor of a minor who requires special medical treatment to comply with the material penalty

The Inter-American Court of Human Rights (Inter-American Court) rejected the request for interim measures in the case “Vera Rojas and others v. Chile”, although it called on the Chilean state to comply with the reparatory measures ordered in the substantive decision. Enhanced supervision will be carried out to demonstrate compliance.

The Chilean state has been ordered to repair the damage caused to a minor diagnosed with “Leigh syndrome,” a progressive disease that causes serious neurological and muscular sequelae. According to the facts of the case, her father took out a health insurance policy with “special coverage for catastrophic illnesses” from Isapre, under which his daughter was subject to home hospital treatment (RHD).

In 2010, Isapre terminated the service on the grounds that a circular from the health regulator RHD excluded treatment for chronic diseases and forced the minor to undergo treatment in a public hospital. For this reason, his parents unsuccessfully took action at the administrative and judicial levels to overturn this decision, as the Supreme Court ultimately ruled against them.

They initiated proceedings before the Inter-American Commission on Human Rights (IACHR) until the case came to the attention of the Inter-American Court, which confirmed a violation of the rights to life, a dignified life, personal integrity, childhood, health and social security of the minor . For this reason, it ordered the Chilean State to comply with a series of reparative measures in favor of the minor, including ensuring the continuity of the medical treatment she needs, providing a neurological chair and providing guarantees against recurrences.

The victim’s representatives then asked the court to issue interim measures in view of the imminent risk of their rights being compromised. The continuity of the treatment was at risk because the minor’s father had been dismissed, which meant that he no longer had the supplementary insurance of the company that reimbursed the monthly costs to Isapre, which provided the service. They called for the treatment to be financed with public funds if necessary.

In its background analysis, the court notes that “(…) at the time of filing the application for interim measures, the situation reported by the representatives was that the father of the woman concerned had been informed of her dismissal, so the action could not be continued He was contributing to his health insurance plan with ISAPRE and was therefore faced with the “immediate termination” of Martina’s health insurance coverage. It was reported that the insurance coverage is valid until November 30, 2023.”

It points out that “(…) Chile agreed with the representatives that “maintaining the care system with the same provider is the most appropriate alternative in the present case.” In this context, he reported that FONASA has a direct contract with the private entity who is currently carrying out Martina’s medical treatment as part of the home hospital treatment. The court takes into account that the State recognizes that it must “guarantee uninterrupted treatment” for Martina, taking into account her state of health. “Consequently, the Court finds that the emergency situation originally described in the application for interim measures has changed.”

He adds: “(…) It is important that the State has priority in the preparation and signing of the contract that FONASA will conclude with the private healthcare provider.” This is to ensure that the medical treatment protection granted by this contract is immediate comes into effect after the end of the minor’s current insurance coverage, thereby ensuring continuity of health care for medical treatments that may be necessary in the future.”

The court concludes that “(…) the parties must be invited to hold a meeting at which they can discuss the objections raised by the representatives to the draft contract, as well as any other government measures that must be taken to ensure it. “ the medical treatment of the person concerned in his current condition and “the treatments he may need in the future due to his illness” and requires them to inform the court of the progress.

Against this background, the court ordered increased monitoring of the reparation measures ordered in the substantive decision, particularly in connection with the provision of medical treatment. The Chilean state was also obliged to submit compliance reports on the measures ordered.

See decision of the Inter-American Court of Human Rights in the case of Vera Rojas et al. Chile and material decision.

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