Judgment T-760/08 on the Right to Health - Towards the end of progressively unifying system, court ordered that unification program: - “(i) provide the definition of mechanisms to streamline access to health services for users, ensuring that the needs and health priorities are met without impeding access to required health services, (ii) identify the disincentives for the payment of contributions by users and (iii) plan for the necessary measures to encourage those with economic capacity to actually contribute, and to ensure that those who move from the subsidized regime to the contributory regime can return to the subsidized regime swiftly when their income decreases or the socioeconomic situation deteriorates.” (p. 31) 4. Key Points - Court recognizes that tutela (constitutional court action) is permissible means to assert claims of state omissions implicating right to health where right to life or personal integrity is at issue: - “claims regarding state neglect of obligations arising from the right to health, even though they had a programmatic character and realization was progressive, were directly susceptible to protection through the tutela, as they constituted obligations upon which the rights to life or personal integrity, for example, depended. (p.4, #3.2.4)” - Court affirms that the right to health is a fundamental social right implied in the right to “a life of dignity,” and its fulfillment requires guaranteeing the provision of the health services (p. 4, #3). These public policies must allow for public participation: - “The programmatic and progressive aspect of a constitutional right allows its holder to legally demand at least the existence of a public policy, aimed at ensuring the effective enjoyment of the right, which includes mechanisms for stakeholder participation.” (p. 6 #3.3.14) - “the constitutional obligations of programmatic character, derived from a fundamental right, are violated when the entity responsible for guaranteeing the enjoyment of a right does not even provide a program or a public policy that would permit the progressive advancement in the fulfillment of its corresponding obligations” (p. 5 #3.3.13) - Court defines state’s obligation to fulfill the right to health: - “requires States to take appropriate legislative, administrative, budgetary, judicial or other measures towards the full realization of the right to health.” (I) For the Committee, the obligation to fulfill (facilitate) “in particular requires that the States adopt positive measures that permit and assist individuals and communities to enjoy the right to health.” (ii) States are also obligated to fulfill (provide) a specific right enshrined in the Covenant “in cases where individuals or groups are