1. The State's obligation to regulate health services in order to protect
personal integrity
134. As this Court indicated in another case, “States are responsible for the permanent
regulation […] of the provision of the services and the execution of the national programs
for provision of high-quality public health services, in order to avoid any risk to the right to
life and to physical integrity of those subject to health care. They must, inter alia, create
satisfactory mechanisms for the inspection of institutions, […] submit, investigate and
decide complaints, and establish suitable disciplinary or judicial procedures for cases of
inappropriate professional conduct or the violation of patients’ rights.” 174
135. The United Nations Committee on Economic, Social and Cultural Rights 175 and the
European Court of Human Rights 176 have ruled similarly, considering that the State must
take positive steps to protect the life of the persons subject to their jurisdiction and to
ensure the quality of health care services, and that health care professional meet the
necessary standards for providing these services, by means of a regulatory framework for
public or private entities, as well as with regard to the activities of private individuals,
groups or corporations, in order to protect the life of their patients.
136. In this regard, the Court observes that, in the instant case, the State referred to
various laws and regulations designed to regulate health care facilities, which were adopted
before and after the facts. On July 1, 2000, the relevant Ecuadorian regulations were
constituted by the following norms: 177
a.
174
The Constitution of June 5, 1998, which entered into force on August 11 that year,
and established that “[t]he State shall formulate the national health policy and
shall supervise its application; [and] shall monitor the functioning of the entities in
this sector” 178 (article 44);
Case of Ximenes Lopes, supra, para. 99.
175
United Nations, Economic and Social Council, Committee on Economic, Social and Cultural Rights. General
Comment No. 14, E/C.12/2000/4, 11 August 2000, paras. 35 and 51. This document establishes that:
“[o]bligations to protect include […] to adopt legislation or to take other measures ensuring […] the quality of
health facilities, […] and to ensure that medical practitioners and other health care professionals meet appropriate
standards of education, skill and ethical codes of conduct.” “Violations of the obligation to protect follow from the
failure of a State to take all necessary measures to safeguard persons within their jurisdiction from infringements
of the right to health by third parties.” These include “such omissions as the failure to regulate the activities of
individuals, groups or corporations so as to prevent them from violating the right to health of others.”
176
The European Court of Human Rights has indicated that: “[among] the basic provisions of the Convention
[the States have] the obligation [… to adopt] the necessary measures to protect the life of the persons subject to
their jurisdiction […]. These principles also apply in the public health sector, where the positive obligations […]
entail the establishment by the State of a framework of public or private regulated entities, adopting the measures
required to protect the life of their patients.” See also Case of Lazar, supra, para. 66; Case of Z v. Poland, supra,
para. 76, Case of Calvelli and Ciglio v. Italy. No. 32967/96. Judgment of 17 January 2002, para. 49, Case of
Byrzykowski v. Poland. No 11562/05. Fourth Section. Judgment of June 27, 2006, para. 104, and Case of Silih v.
Slovenia. No. 71463/014. Judgment of 9 April 2009, para. 192.
176
Cf. Case of Z v. Poland, supra, para. 76, ECHR. Case of Calvelli and Ciglio v. Italy, supra, para. 49, and
Case of Byrzykowski v. Poland, supra, para. 104. Cf., mutatis mutandi, Case of Erikson v. Italy. No 37900/97. First
Section. Judgment of 26 October 1999; Case of Powell v. United Kingdom. No 45305/99. Third Section. Judgment
of 4 March 2000, and Case of Silih v. Slovenia. No. 71463/014. Judgment of 9 April 2009, para. 192
177
The Court examined this normative relating to guaranteeing and supervising the health services in the
Case of Albán Cornejo et al., supra, paras. 123 and 132.
178
Constitution of the Republic of Ecuador, 1998 (file of annexes to the answering brief, folio 2190).
39
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