Ruling for Access. Search Results: SUMMARY OF NEGATIVE RULINGS

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1 Ruling for Access Search Results: SUMMARY OF NEGATIVE RULINGS ARGENTINA Arg 1 Neg: Multiple Sclerosis Association vs Ministry of Health, 18 December 2003 Case number: A XXXVIII. Summary: The Multiple Sclerosis Association protests against the decision of the Ministry of Health to exclude medicines from sufferers of multiple sclerosis and declares it as unconstitutional. Right of health recognized as a constitutional right. Reference to the Covenant on Economic, Social and Cultural Rights, Convention of Human Rights of San Jose, Costa Rica, International Covenant on Civil and Political Rights. The court found that the Obligatory Medical Plan that excludes medication for multiple sclerosis violates the right to health. The Ministry of Health argues that the reason for not providing the medication is that there are various classes and types of the disease and that it is safeguarding patients of possible adverse reactions. Outcome: The court passed a negative ruling and supported the argument of the Ministry of Health. Document: Arg 1 Neg.doc and Arg 1 Neg.pdf Original translation needs to be checked COLOMBIA Col 1 Neg: Carlos Usma Lemus, Edgar Castle Cifuentes and Mayan Polished Ramiro vs Secretariat Distrital de Salud of Bogota and the Simón Hospital Bolivar, 25 October 2001 Case number: T 1132/01 Summary: The plaintiffs alleges that Distrital de Salud of Bogota and the Simón Hospital Bolivar have harmed their fundamental rights to life, health and social security because the hospital refuses to give medicines and to pay the necessary attention for the treatment of HIV that plaintiffs suffer. Mr. Carlos states that the Simón Hospital Bolivar should be ordered to give the totality of medicines cost free, as well as the practice of examinations and procedures to him that is required for his treatment. Simón Hospital Bolivar states that it has provided all the medicines that have been required by the plaintiffs. The previous court decisions found in favour of the hospital that they had provided the medicines necessary to the plaintiffs. Outcome: The court finds that two of the plaintiffs are being taken care of by the hospital Mr. Mayan Polished Ramiro and Mr Edgar Castle. Document: Col 1 Neg 1

2 Col 2 Neg: Teresa Del Nino Jesus Restrepo vs Susalud E.P.S. Seccional Medellín, 10 March 2003 Case number: T 202/03 Summary: The plaintiff Ms. Restrepo, 71 years of age claims that her rights to life, health, personal integrity and social security have been harmed as the medicine Alendronato Sodico that was prescribed to her to improve her symptoms of osteoporosis. This specific medicine is not included in the Obligatory Plan of Health. The organization states that it has not violated any rights as it was ready to offer medicines that were in the Obligatory Plan of Health and which the doctor affirmed would treat the disease in an effective way. Outcome: The court affirmed that the right to health becomes fundamental when the right to life or right to personal integrity is connected with it. The court decided to uphold the previous decision from Court 36 of the Municipal Penitentiary of Medellín, in which the plaintiff s claim was rejected. Document: Col 2 Neg COSTA RICA (Upper Middle Income Economy) Cos 1 Neg: Mr Jacobo Schifter Sikora as President of the Association Against AIDS vs La Caja Costarricense de Seguro Social (Costa Rican Box of Social Insurance), case no: (7 February 1992) The case was rejected on the grounds that the Antiretroviral medicines (ZDV and AZT) in question have not yet been proven as a cure and have many adverse sideeffects and that further research that is conclusive would be needed before decisions can be made about it. In its judgment the court stated that medicine ʺcannot be translated into a cure, only into a certain and prolonged course of deterioration.ʺ The court also added that the financial costs of purchasing the medicine would imply a great sacrifice for the State. In 1992, several people with HIV/AIDS filed a lawsuit in the Constitutional Court of the Supreme Court of Justice, claiming that zidovudine (AZT) should be covered by Social Security. The Constitutional Court has a mandate to review compliance with the Constitution of Costa Rica. Its verdicts are of a declaratory nature; they are unappealable and enter into force immediately. The Court rejected this lawsuit, saying that in its judgment the medicine ʺcannot be translated into a cure, only into a certain and prolonged course of deterioration.ʺ Source: 6.htm Cos 2 Neg: Maria Teresa Sanchez Valencia in favour of Herminio Lopey Carvajal vs Executive President and the Head of the Department of Pharmacopoeia of the Costa Rican Box of Social Insurance, Case number: 09435, 27 August 2004 (Constitutional Room of the Supreme Court of Justice, San Jose) 2

3 Summary: The plaintiff, on behalf of her husband who suffers from chronic asthma claims that the necessary medication is ʺForadilʺ and that it is the only medicine that treats the asthma well, basing this claim on previous prescriptions from a medical doctor. The plaintiff states that biweekly cost of the medicine is not sustainable and that was the reason for going to the Costa Rican Box of Social Insurance. The President of the Costa Rican Box of Social Security claims that it does not have knowledge of the facts and that the Department of Pharmacopoeia supervises the medication prescription. The Head of the Department claims that the patient has a chronic inflammatory disease that the drugs used to treat the asthma are B 2 agonists and that those patients not responding to the medication were prescribed with specific mixture of medicines. The patientʹs request for foradil did not correspond to the requirements of the centre. The Department also claims that the foradil prescription from a medical doctor to the plaintiffʹs husband was prescribed over two years ago and that conditions of the prescription change due to various factors. The claim was dropped and the resource was declared without place. Document: Cos 2 Neg Cos 3 Neg: Walter Schmidt Barrios vs Clinic of the Centre of Institutional Attention The Reformation, Case Number: 10680, 29 September Constitutional Room of the Supreme Court of Justice, San Jose. Summary: The patient, Walter Schmidt Barrios alleged that he was denied the prescribed treatment at the Clinic of the Centre of Institutional Attention The Reformation. The Head of Pharmacy at the Clinic admitted that the patient was not taken care of on 5 th September but that the 6 th of September when he was prescribed the medication, it was given to him immediately. Outcome: The court decided that the patient had in fact received suitable medical attention and that the medicines for the treatment were administered. Document: Cos 3 Neg EL SALVADOR (Lower Middle Income Economy) Sal 1 Neg: Marina Ester Sánchez vs Ministry of Public Health and Social Assistance, case no: (14 September 2004) Summary: The plaintiff, an HIV positive person alleges that the Ministry of Public Health has breached her constitutional rights to health and life by not providing her with antiretroviral medication. The defendant argues that the clinical reports of the plaintiff do not indicate a sufficient basis for commencing an antiretroviral therapy. In addition, the doctor s treating the patient testify that the criteria for commencing therapy are not fulfilled by the patient. Outcome: The Court found that the case did not provide sufficient evidence that the Ministry of Health had breached constitutional rights of health and life. Document: Sal 1 Neg 3

4 NIGERIA (Low Income Economy) Ng 1 Neg: Ahamefule vs Imperial Medical Center & Another (Suit ID #1627/2000), Notice of Appeal, Court of Appeal (Lagos), 16 February 2001 (on file); Communication from F Mroka, Solicitor, Social and Economic Rights Action Center (SERAC), 21 February 2001 and 30 July Summary: This is a landmark case in Nigeria in which the Social and Economic Rights Action Centre (SERAC) is representing a woman living with HIV in her suit over the denial of medical care (among other things) based on her HIV status. The case was initiated in The 39 year old woman was denied access to treatment by the General Hospital in Lagos sometime in March 2002, when she visited the hospital for treatment of opportunistic infections. The hospital refused to provide her with medical attention, claiming that people living with HIV/AIDS were never admitted for treatment. Among the reliefs being claimed by the woman are the following: a declaration that the denial of treatment to her based solely on her HIV status constituted an act of unfair discrimination against her, contrary to the Constitution of the Federal Republic of Nigeria 1999, the African Charter on Human and Peoples Rights (African Charter), and other international human rights instruments ratified by Nigeria; a declaration that the refusal to give medical attention to her based solely on her HIV status is illegal, unlawful, and unconstitutional, and constituted an act of inhuman and degrading treatment, contrary to the Nigerian constitution and African Charter; a declaration that the denial of treatment when she was in critical condition amounted to a violation of her right to life guaranteed under the Nigerian constitution and the African Charter; a perpetual injunction restraining the respondents agents from further discriminating against the applicant and HIV positive persons in any general hospital in Lagos State; and an order awarding the sum of 10 million naira (about US$77,000) as damages to the applicant for the violation of her fundamental human rights as guaranteed by the Nigerian constitution. This is the first court case challenging denial of treatment for people living with HIV/AIDS in Nigeria. Outcome: In a brazen violation of constitutional guarantees of fair hearing and access to justice, the court refused the plaintiff entry based upon its unfounded fear that the presiding judge and others in attendance might become infected with HIV by the plaintiff s mere physical presence in the room. SERAC has appealed that decision amidst widespread condemnation of the ruling in light of its far reaching public interest dimensions. (Felix C. Morka, Combating Poverty Through the International Human Rights Framework, Source: m#t2 4

5 PANAMÁ (Upper Middle Income Economy) Pan 1 Neg: Fundacion Pro Bienestar Y Dignidad de las Personas Afectadas Por el VIH/SIDA (PROBIDSIDA) vs Director of the Social Insurance Box, 31 December 1998, Panama Supreme Court of Justice Summary : The plaintiff alleges that medical prescriptions were refused by the Social Insurance Box and that this refusal was a violation of Articles 17, 105, 106 and 107 of the National Constitution. The medical prescriptions were sent back to the claimants with a statement stating that the medicines were outside the official medicine list. It was argued that the medicines should be provided to the individuals protecting the well being and dignity of individuals affected by HIV/AIDS. Outcome : The court passed a negative ruling on the case. There were several legal exigencies that were required for the case to be admissible that were not fulfilled by the plaintiff, the case failed on technical grounds. Source: Document : Pan 1 Neg Pan 2 Neg: Mr Jorge Moran vs Social Insurance Box, 24 June 1999 Summary : The plaintiff claims that the medicines for HIV/AIDS that he requested from the Social Insurance Box should be provided. Outcome : The demand was not admitted as the plaintiff s request is part of the right to petition concescrated in Article 41 of the Political Constitution. The court ruled against the plaintiff in that the legal exigencies that initiated the process were invalid. The official medicine list of the Social Insurance Box is not determined on the basis of requests from patients but is a result of the decision of the Medicine Commission. The necessary requirements to include medicine in the list is for the Head of Department or the unit medical executor of the Social Insurance Box to request and sign an inclusion, which would need the support of most of the civil employees. The technical and scientific criteria for the request would also need to be provided. The court stated that the Mr. Moran s request could give rise to a decision that may lead to the modifying or extinguishing subjective rights. Document : Pan 2 Neg SOUTH AFRICA (Upper Middle Income Economy) Saf 1 Neg: Soobramoney v Minister of Health, KwaZulu Natal 1998 (1) SA 765 (CC), 1997 (12) BCLR 1696 (CC) Summary: The applicant, a 41 year old and unemployed man, was suffering from chronic renal failure resulting from diabetes. This condition was irreversible. His life could only be prolonged by an on going dialysis treatment. He approached a state hospital for this treatment but the hospital refused him admission to its renal unit following a set policy. According to the policy, the primary requirement for this 5

6 treatment was eligibility for a kidney transplant. The treatment could be administered until a donor was found and the transplant completed. Furthermore, to be eligible for a kidney transplant, a patient has to be free from other ʺsignificantʺ diseases. The Appellant failed to satisfy the requirements for a kidney transplant as he was suffering from other serious diseases such as heart disease. This refusal prompted the applicant to ask for a court order directing the hospital to provide him with on going dialysis treatment, and restraining the provincial Minister of health from refusing him admission to the renal unit of the hospital. The High Court dismissed the application. Thereupon, he appealed to the Constitutional Court, arguing that patients who suffered from terminal illnesses and required treatment to prolong their lives were entitled to be provided with such treatment by the State pursuant to section 27(3), which guarantees the right to of everyone not to be denied emergency treatment. Reliance was also placed on section 11, which guarantees the right to life. The Decision 1. According to Constitutional Court, ʺthe right to medical treatment does not have to be inferred from the nature of the State established by the Constitution or from the right to life which it guaranteesʺ. (Para 19) This right is dealt with directly under section The right not to be refused emergency medical treatment under section 27(3) of the Constitution was interpreted to mean that the State is under an obligation not to deny a person remedial treatment that is necessary and available to forestall harm in the case of a sudden catastrophe or emergency. It did not extend to the provision of ongoing treatment of chronic illness for prolonging life. To hold otherwise, ʺit would make it substantially more difficult for the state to fulfil its primary obligations under sections 27(1) and (2) to provide health care services to ʹeveryoneʹ within its available resourcesʺ. (para 19). 3. The Court then considered the applicability of section 27(1)(a) read with (2) of the Constitution. This provision gives everyone the right of access to health care services, including reproduction health care. This obligation is qualified in that the State is required to take ʺreasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.ʺ 4. The Court found that all renal units were stretched in terms of resources. There were more people suffering from renal failure than there were dialysis machines to treat them. The Court indicated that ʺit would be slow to interfere with rational decisions taken in good faith by political organs and medical authorities whose responsibility it is to deal with such mattersʺ. (para 29) It took the view that the guidelines drawn up by the hospital authorities for determining patients who qualified for dialysis treatment were reasonable. It was not shown that these guidelines had been applied irrationally or unfairly in the present case. Thus, the Court refused to order the provision of the treatment arguing that the guidelines had the advantage 6

7 of allocating scarce resources rationally to ensure that a greater number of patients are cured than would be the case if the dialysis machines were used to keep alive persons with chronic renal failure. Also see: Saf 2 Neg: New Clicks SA (Pty) Ltd vs Minister of Health and another & Pharmaceutical Society of South Africa and others v Minister of Health and another case numbers: 4128/2004; 4329/04 (Judgment Delivered: 27 August 2004) Summary: Two separate applications were launched in this Court by New Clicks South Africa (Pty) Ltd as the applicant in one such application and the Pharmaceutical Society of South Africa and six others as applicants in the other application. The respondents in both such applications are the Minister of Health who has been cited as the first respondent and Prof Diane Elizabeth McIntyre as the second respondent. The second respondent is joined in the proceedings in her capacity as chairperson of the Pricing Committee constituted in terms of section 22G of the Medicines and Related Substances Act, 101 of The relief sought in both applications is an order reviewing and setting aside the recommendation made by the Pricing Committee to the first respondent in terms of section 22G(2) of the Act and pursuant to which the Regulations, which are the subject of a challenge in both applications, were published (the recommendations). The second leg of the relief sought is the order declaring some of the provisions of the Regulations to be invalid and of no force and effect. The underlying purpose towards the introduction of a pricing system which is transparent is to ensure accessibility to affordable and quality medicine; empowering the Director General of the Department of Health to access information that may be necessary to ensure transparency and compliance with the Regulations and to establish a relationship between the price of a medicine or Scheduled substance and the therapeutic value of such a medicine or substance. The Regulations therefore provide that the Director General may request from all persons and entities in the supply chain to furnish him or her with the information contemplated in Regulation 14(5), 21(1)(a) and 21(1)(c). Judge Yekiso and Hlophe found that the relevant Regulations are not vague and promote transparency. The applications are dismissed with costs. 27 August 2004 DOCS: Saf 2a Neg and Saf 2b Neg 7