DECISION T-760/08. Fundamental right to health

On this occasion, the Constitutional Court acknowledged a series of cases in which the plaintiff invoked the violation of the fundamental right to health, specifically in the access to the health services required, and whose solution had been clear and reiterated by the jurisprudence of this Tribunal. The multiple cases that were reunited had in common at least one of the following topics: access to health services included in the “Plan Obligatorio de Salud (POS)”, access to health services not included in the “Plan Obligatorio de Salud (POS)”, access to health services for minors, recognition of temporary inabilities to work, access to health services in conditions of integrality, access to high cost health services, catastrophic diseases, diagnosis and access to health services when the person has to be transported to a place different than the one where he resides.

The Court deployed the analysis studying: the right to health as a fundamental right, the notion of health, the positive and negative strands of the right to health, the jurisprudence about protection of a fundamental right when dealing with obligations of prestational content, the characterization of the right to health in the Constitutional Bloc, the types of obligations derivative of the right to health, the limits of the right to health and the right to access health services.

The plenary adopted multiple decisions orientated to deal with the lack of appropriate access to health services, it also ordered the Ministry of Social Protection to adopt the necessary measurements orientated to overcome the failures in the regulation of the plans of benefits, the actualizations of the “Planes Obligatorios de Salud (POS)” at least once a year, the “Superintendencia Nacional de Salud” to take action to identify the Health Promotion Agencies (EPSs) that most regularly fail to authorize promptly the health services included in the POS or that are most needed.