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Decision T-760 of 2008

Year: 2008 (Date of Decision: 31 July, 2008)

Forum, Country: Constitutional Court; Colombia

Standards, Rights: Core content; Right to health;

Summary Background: The judgement came as the culmination of litigation efforts to enforce implementation of the right to health in circumstances that disregarded the constitutional right to health in Colombia.

Holding: In examining Colombia’s international legal obligations, the Court reaffirmed the right to health as constituting a fundamental right [para. II.3.2]. It ordered a dramatic restructuring of the country’s health system to correct structural failures in the Colombian public health sys- tem [para. III.16].

The Court demonstrated its commitment to the minimum core approach by giving very specific content to the right to health, as a right immediately enforceable for certain categories (which it defined in detail) of plaintiffs even though they are unable to afford health care [para. II.3]. For these categories, the Court ordered the provision of a wide range of goods and services, including viral load tests for HIV/AIDS as well as anti-retrovirals, costly cancer medications, and even the financing of treatment of patients abroad when appropriate treatment was unavailable in Colombia, all of which are considerably resource intensive measures. The Court distinguished an essential minimum core of the right to health based on the POS (mandatory health plan)/POSS (subsidized mandatory health plan), which was to be immediately enforceable [para. II.3.2.3.], and other elements that are subject to progressive realization taking into account resource constraints.

The Court’s decision explicitly adopted the right to health framework set out by the CESCR [para. II.3.4]. In keeping with the Committee’s interpretation of the right to health, the Court:

  1. expanded on the multiple dimensions of State obligations that flow from the right to health, and how oversight is essential to protecting the right to health as well as to accountability;
  2. repeated that the State is responsible for adopting deliberate measures to achieve progressive realization of the right to health and that retrogression (backsliding) is generally impermissible; and
  3. declared that the right to health calls for transparency and access to information, as well as for evidence-based planning and coverage decisions based on participatory processes.

Link to Full Case: s/Norma1.jsp?i=33490

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