Hospital Británico de Buenos Aires v. Estado Nacional (Ministerio de Salud y Acción Social)

H. 90. XXXIV
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Hospital Británico de Buenos Aires, a private health service provider, filled a guarantee of protection of individual constitutional rights (amparo protection) against the Federal State requiring the judiciary to declare that the National Act 24.754 was contrary to articles 14, 17, 28 and 33 of the National Constitution. The law obliged private health service providers to finance the treatment of high-cost illnesses such as drug addiction and HIV/AIDS. The Hospital argued that this law infringed its contractual freedom and its right to develop lawful activities, and put it at a disadvantage compared to the competing services offered by state-funded social welfare agencies. The Hospital also argued that the law violated the Hospital’s property rights by raising its operating costs to an extent where the Plaintiff would no longer be able to survive in the market.

The Supreme Court rejected the action. It considered that the amparo protection required a Plaintiff to prove a concrete harm to their constitutional rights. In this case, the Plaintiff was not able to do so. Both the majority and several concurring judges also adopted the reasoning contained in a report of the Attorney General, with the concurring judges choosing to highlight the human rights aspects of the report.

In his opinion, the Attorney General rejected the trial judge’s ruling that the chance that a beneficiary would develop AIDS or a drug addiction was an “immense risk” that was “impossible to measure” and therefore analogous to war, nuclear accidents, earthquakes or floods. It pointed to official and unofficial guidelines calculating the likely impact of extending coverage on the Plaintiff’s business interests, and considered that it was entirely unproven that the Plaintiff’s business would be threatened by this extension of coverage. Any assertions that this was the case were “dogmatic” and based on conjecture. It was therefore not possible to examine whether the law was unconstitutional because the harm to the plaintiff’s constitutional rights could not be proven.

The Attorney General also considered that even if this harm to the rights of property and liberty could be shown, it would still be consistent with the constitution. The rights to health and life were protected both as constitutional guarantees and as treaties of constitutional rank, with the right to life in particular being “the first natural right of the human being.”  The challenged law protected these guarantees and should be interpreted in light of them, particularly given that the scheme was designed to reach a disadvantaged group who otherwise would be marginalised. As such, the prepaid medicines had obligations transcending mere business interests.

In the opinion of the Attorney General, there was no absolute right to liberty and property, and those rights could legitimately be regulated to achieve other public interest goals. One such goal was the right to health, which could only be fully achieved in light of social realities if private actors such as the prepaid medicine entities were regulated. The challenged law was a reasonable example of such regulation and was fully consistent with the constitutional framework.

The Attorney General also rejected the argument that persons with AIDS had contracted illnesses by voluntary exposure to risky behaviour as “shocking and inappropriate”

Attorney General Opinion:

“And the right to health – which is not a theoretical right, but rather one that must be examined in close conjunction with the problems that emerge in social reality, to achieve its genuine scope – inevitably enters as much into private relationships as semipublic ones, a correlate which results in regulations like the one analyzed that attempt, in exercise of regulatory authority […] to recognize a new reality that identifies new institutional actors in this field– the prepaid medicine entities – and recent or potential pathologies.” Part VI page 12

"Y es que el derecho a la salud - que no es un derecho teórico, sino uno que debe ser examinado en estrecho contacto con los problemas que emergen de la realidad social, para lograr así contornear su genuino perfil - penetra inevitablemente tanto en las relaciones privadas como en las semipúblicas, correlato de lo cual resultan normas como la analizada, que pretenden, en el ejercicio de potestades reglamentarias [...], asentir a una novedosa realidad que reconoce en este campo a nuevos actores institucionales -las entidades de medicina prepaga- y a recientes o potenciadas patologías." Part VI page 12


"Para concluir, deseo remarcar que comparto el juicio vertido por la juez de grado en orden a que, amén de inexacto, resulta cuanto menos, chocante e inapropiado que se insinúe que el S.I.D.A. sería una enfermedad contraída por personas que voluntariamente se exponen a conductas de riesgo reprobables (fs. 191), argumento que, más allá del énfasis del amparista y aun prescindiendo de su índole dogmática, no deja de comportar, en último término, una objeción al mérito de la medida, cuestión -como se expuso- ajena a la competencia de los tribunales." Part VIII.

“I wish to emphasize that I share in the judgment issued by the lower court judge that, in addition to being inaccurate, it is at the least shocking and inappropriate to insinuate that A.I.D.S. is an illness contracted by people who voluntarily expose themselves to risky and reprehensible behavior (p. 191), an argument that, putting aside the emphasis of the petitioner and even disregarding the argument’s dogmatic nature, involves, in the end, an objection to the merit of the measure, a question – as has been explained – that is outside the competence of the tribunals.”  Part VIII.


Supreme Court's decision:

"Que, en este sentido, la sentencia apelada incurre en arbitrariedad por contener fundamentos tan sólo aparentes, ya que no resulta suficiente sostener en abstracto argumentaciones en torno a la libertad de contratar, a la afectación del contenido estructural de contratos privados de cobertura médica y al "exorbitante costo económico", derivado de la aplicación de la ley, sin ponderar en el caso examinado la falta de demostración por parte de la actora, del perjuicio concreto que le ocasionaba la normativa impugnada, requisito ineludible para obtener la declaración de inconstitucionalidad de una disposición legal." Paragraph 6 of the Supreme Court decision.

“As a direct consequence of the preceding, I judge that there is a lack of support for the assertions of the lower court with respect to the violations of property, contractual freedom and the exercise of a lawful activity of the petitioner, such that, in the conditions previously described, it is not possible to legitimately consider whether the regulation is manifestly unreasonable or arbitrary, harmful to those rights, whose evidence requires the legal and constitutional norms inherent to the legitimacy of a special amparo petition, especially in cases like the present which is being used to pursue a declaration of unconstitutionality of a regulation.” Paragraph 6 of the Supreme Court decision.