—Alicia Ely Yamin, Harvard Law School
In an important, newly issued opinion, T-237/2023, the Colombian Constitutional Court (the Court) addresses priority-setting in the context of triage during the COVID-19 pandemic. The Court has issued some of the most progressive jurisprudence regarding the right to health in the world. Beginning in the early 1990’s when health was embedded in the 1991 Constitution as a public service, the Court iteratively moved to find the need to find a nexus between health and life arbitrary and to establish health as a fundamental right. T-760/2008 is the most far-reaching decision regarding the right to health to date, which consolidated and reiterated important jurisprudence and, through dialogical remedies, led to a significant reform of the health system in 2015. On an array of other health issues, the Court’s interventions have been groundbreaking as well. C-055/2022 established the most extensive right to an abortion of any country in the region, and among the most progressive in the world. The Court has issued opinions on inter alia public health and care in indigenous communities, access to IVF and to euthanasia, and the rights of intersex children to consent before gender assignment surgery.
This extensive body of jurisprudence, however, has not resulted in reduced litigation (approximately 100,000 tutelas, or protection writs, are brought every year). Nor, despite the systemic reforms catalyzed by T 760/08, has it produced effective oversight and accountability of a highly medicalized and bureaucratic system that is plagued by rent-seeking interests, financing and regulatory gaps, and gaping disparities between urban and rural areas. A new systemic reform initiative, brought under the administration of Gustavo Petro, stalled in Congress earlier in 2023.
In contrast with other high courts in the region and around the world, the Court has shown less interest in structuring the rules of how priorities are set in the health system. Indeed, in C 313/2014 the Court held that there should be a presumption of inclusion unless a specific medication, commodity or intervention is explicitly excluded, which did not align well with a complex, public-private health system built around capitation rates.
Thus, although the question of triage policies during COVID-19 came before many courts, T-237/2023 is particularly important in Colombia, as the Court inserts criteria for addressing trade-offs. The case involved Constanza Eugenia Mantilla Reyes and 25 others who were 60 years old or more and suffered some level of disability or chronic illness brought suit with the assistance of foreign and local non-governmental institutions to challenge the recommendations issued by the Ministry of Health and Social Protection (the Ministry) regarding prioritization during COVID-19 for respirators, ICU beds, etc.
Despite the fact that the pandemic surges are over, the Court decided to accept the case after the tutela, or protection writ, was denied at the trial court and again at the Administrative Tribunal of Cundinamarca. The Court found that there were ongoing issues that affected fundamental rights at stake and called for revised guidelines to be issued by the Ministry.
The “General Recommendations for Ethical Decision-Making during COVID pandemic” issued by the Ministry called for triage at all levels of facilities and redistribution of resources to those who will benefit most. The petitioners claimed that the failure to make the recommendations binding constituted an omission that violated their rights by permitting individual facilities and regions to make their own rules, which often had the effect of discrimination against persons with disabilities, especially the elderly. Indeed, the Court found that, as the recommendations were not binding, dissimilar treatment was observed throughout the country. For example, in the department of Antioquia, guidelines for respirators included “long-term survival” probabilities, which is considered irrelevant from a bioethical perspective, and inherently results in discrimination against elderly and disabled persons .
The Court elucidates norms of equality and non-discrimination in the case of persons with disabilities and the ‘semi-suspect’ category of the elderly (over 60 years old). In doing so, the Court rejects the medical model of disability, and embraces the social model adopted in the UN Convention on the Rights of Persons with Disabilities (CRPD) . Given that in a previous judgment before ratification of the CRPD, the Court accepted involuntary sterilization of girls with disabilities, this is particularly welcome. In T-237/2023, the Court also sets out parameters for the process for drawing up new binding guidelines, including meaningful participation by those affected, transparency, clear ranking criteria, and revisability in light of new evidence—all of which are well-established in the ethical literature and increasingly in human rights documents as essential for democratic legitimacy of health decisions.
Arguably, the judgment’s analysis of what is required for the decision-making guidelines to treat diverse people with equal concern and respect in triage is overly narrow. For example, during the pandemic we witnessed how equality and non-discrimination norms were violated when COVID-19 patients received care by displacing others with similarly grave or more serious conditions who could benefit more, including persons suffering from chronic conditions and with disabilities. Moreover, the Court might have underscored that a precondition for equality and non-discrimination is a health system, including ICUs, which is fairly financed and organized across Colombia’s departments and across rural-urban divides. For example, in 2020, there were 5845 ICU beds in Colombia, 32.5% of which were in the capital, Bogotá, where there was a capacity of over 1000 ICU beds. However, five out of 32 departments (plus the capital district) have no ICU (Amazonas, Guaviare, Guainía, Vaupés, and Vichada). In some remote areas, health facilities lack even steady electricity or adequate oxygen capacity.
Further, the Court errs in repeatedly reiterating that rationing should only be performed in public health emergencies. The truth is that all health needs can never be met and, as Norman Daniels wrote, “it is the task of justice to meet health needs fairly.” The point of a right to health, in ordinary times as well as in crisis, is that inevitable priority-setting, or rationing, be carried out fairly and transparently in accordance with principles of meaningful participation and equal concern and respect, which may well mean providing more to those who are worse off. Just as in T 237/2023, the Court rejects the idea that individual physicians should make all triage decisions, evidence-based guidelines to equalize equity across the system are critical during ordinary times.
Explicit priority-setting in no way means capitulating to the budgets that bureaucrats enthralled by austerity or profits establish– nor accepting flawed processes that do not merit deference. Indeed, more macro- and meso-level decisions, such as those regarding financing (taxation, social insurance, etc.) as well as the priority placed on public health and primary care as opposed to specialized care, have enormous distributional consequences and should be subjected to greater public scrutiny. Likewise, global intellectual property regimes that subordinate health to pharmaceutical monopoly profits, have outsized implications in terms of health system capacity as well as costs, during ordinary as well as pandemic times.
Democratizing health systems, and the political economy of global health, demands exposing and addressing these factors, as some courts and legislatures did during the pandemic. Explicit priority-setting, far from being incompatible with health rights, provides an opportunity to bring structural constraints on robustly financed and equitable health systems to the fore, which is key to advancing health justice. By contrast, denying the need for priority setting invariably leads to implicit rationing through queues and costs, which in turn reinforces ingrained lines of privilege and market power and undermines social pressure for change.
Suggested citation: Alicia Ely Yamin, Priority-Setting and the Right to Health: Important Advances and Missed Opportunities from the Colombian Constitutional Court, Int’l J. Const. L. Blog, Aug. 27, 2023, at: http://www.iconnectblog.com/strongpriority-setting-and-the-right-to-health-important-advances-and-missed-opportunities-from-the-colombian-constitutional-court-strong/
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