Region:
Year: 2011
Court: Constitutional Court [Corte Constitutional]
Health Topics: Disasters and emergencies, Health care and health services, Health systems and financing, Hospitals
Tags: Access to health care, Health funding, Public hospitals
This case was a decision on the constitutionality of an executive decree extending the declaration of a state of emergency in respect of the national public health services. Articles 165 and 166 of the Constitution and Articles 120 and 121 of the Organic Law of Jurisdictional Guarantees and Constitutional Controls set forth conditions that a declaration of a state of emergency must meet, including the civil rights that may be limited thereby. This was the first and only judicial instance.
This was a decision by the Constitutional Court on the constitutionality of an executive decree extending for 30 days the state of emergency imposed on all operative units of the Ministry of Health, with a list of hospitals in particular, in order to avoid a collapse in services and for the Ministry of Health to be able to implement emergency capacity-building measures. The issue was that this will imply the continued suspension of some services, and by extension, the public's right to access them. Article 165 of the Constitution enumerated the specific rights that may be limited or suspended through emergency measures; the right to healthcare is not included. The Court considered however that as the decree does not specify which rights may be suspended or limited as a result thereof, it was not in violation of Art. 165, and held that the decree met the requirements of necessity, proportionality, legality, temporality, territoriality and reasonability, and was therefore constitutional.
“…article 165 of the Constitution of the Republic sets forth that: ‘During the state of emergency, the President of the Republic may only suspend or limit the exercise of the rights to the inviolability of one’s domicile, the inviolability of one’s correspondence, the freedom of movement, the freedom to associate and assemble, and the freedom of information, under the terms set forth by the Constitution.’
In this respect, beyond the mention of or the failure to mention those rights the exercise of which would be limited by the declaration of a state of emergency, the only rights that may be limited are those referred to in the preceding paragraph…” (page 5)