Reynoso, Nilda Noemí v. I.N.S.S.J.P.

The Petitioner, an elderly woman with diabetes, filed an action of amparo against the I.N.S.S.J.P, a public entity devoted to the provision of public health insurance to retired people. She requested the judiciary to order the Respondent to provide her 100U of human insulin, reactive tape and disposable syringes, as well as the medicine “Ampliactil” and disposable diapers under the Emergency Required Medical Program (PMO).

The lower court had partially upheld the action. Interpreting the laws governing the PMO, it ordered the provision of insulin, reactive tape, and syringes, but rejected the claim for disposable diapers and ordered that only 40% of the cost of Ampliactil be covered.

The Petitioner appealed, arguing that the PMO should be interpreted in light of the right to life, the right to health and the right to dignity, and that such an interpretation would require the I.N.S.S.J.P to provide the remainder of the medicines.

The Supreme Court adopted the reasoning of the Attorney-General, and held that the INSSJP should provide 100% of the Ampliactil and the disposable diapers in addition to the other medicines. It also awarded costs against the INSSJP due to the Petitioner’s low-income status.

The Attorney-General considered that the right to health was “intimately related” to the right to life, the most important human right under the Constitution. Further, the PMO Annexes, which established the levels of coverage for various medicines, were subsidiary to Article 1 of Decree 486/2002, the legislative provision guaranteeing basic goods and services for the population. Subsection (d) of this provision placed an obligation on the INSSJP to ensure these supplies to its beneficiaries.

In light of this context, the Attorney-General considered that the diapers and the Ampliactil medicine were absolutely necessary for the Petitioner to maintain her dignity and self-sufficiency. The Petitioner was in a vulnerable position as an elderly woman who suffered from dementia and incontinence as a complication of her diabetes and was confined to a wheelchair and had been declared mentally incompetent. As she was a low-income pensioner with no ability to pay for the medicines herself, the Attorney-General considered that the State had an obligation to provide them to her.

Ms. Minister Dr. Doña Carmen M. Argibay partially dissented, upholding the Petitioner’s claim for Ampliactil but not for disposable diapers. The Minister noted that the Court had essentially stated that the INSSJP was to exercise redistributive powers by providing different percentages of coverage based on a beneficiary’s ability to pay, but had not adequately explained the basis of doing so. She went on to find that the INSSJP should exercise such redistributive powers in order to achieve the goals of equity outlined in the relevant laws, and found that they should cover 100% of the Ampliactil because of the Petitioner’s low income. However, she considered that such reasoning did not apply to medicines that were not on the PMO list at all, and refused the claim for disposable diapers.

“It is worth recalling that in the first place, the right to health, particularly when dealing with serious illnesses, is intimately related with the right to life, this being the first human right recognized and guaranteed by the National Constitution. The human being is at the center of the entire justice system and is an end in itself – beyond one’s transcendental nature – one’s body is sacred and constitutes a fundamental value, with respect to which the remaining rights always have an instrumental nature.” Translation page 2-3.

“In accordance with the medical certificates compiled in the proceedings (p. 5-14), the medicine is absolutely necessary to her, as are the disposable diapers to make up for her lack of self-sufficiency, and as the only way to continue maintaining a life of dignity given her senility and incontinence.” Translation page 3.