SEPARATE OPINION OF JUDGE SERGIO GARCÍA-RAMÍREZ
REGARDING THE JUDGMENT RENDERED BY THE
THE INTER-AMERICAN COURT OF HUMAN RIGHTS
IN THE CASE OF ALBAN-CORNEJO ET AL. (ECUADOR),
ON NOVEMBER 22, 2007
A)
The protection of health and the right to life, humane
treatment and justice
1.
In the analysis of and final decision on the Case of Caso Albán-Cornejo et
al. (Ecuador) in its judgment of November 22, 2007, the Inter-American Court has
once again reflected on the protection of life and integrity, both of which translate
into health care, as a right of individuals, and the duty to provide such care through
different means, as an obligation of the State. The Court initially addressed this
issue in the Case of Ximenes-Lopes (Brazil), in a judgment to which I also added
my own separate Opinion.
2.
So far, the protection of health is not a readily actionable right under the
Protocol of San Salvador. However, this issue can –and should– be examined, as
done by the Court in the instant case, from the perspective of the preservation of
the rights to life and humane treatment, and even from the standpoint of access to
justice where the impairment of either legal interest –the core of the relevant
rights– gives rise to a claim for justice.
3.
In such cases, as well as in others, the State’s duty is not limited to the
provision of health services by the State –i.e. the instant protection of life and
humane treatment– through its own units, organs or officials, as is typical of the
social State and even the social benefits system, the seed of a social rights law,
created by the old welfare State in the public health area. That obligation to respect
and guarantee the rights covers – as held by the Court in the Case of XimenesLopes and, again, in the judgment to which this Opinion relates – both situations of
service delegation, where the service is provided by private parties on behalf of the
State, and the inevitable supervision of public services that concern interests of the
greatest social importance, as is the case with health, the oversight of which
inexcusably lies with the State. In passing judgment on a violation of human rights
and State responsibility, regard must be had to the private nature of the relevant
institution and the employees, officials or professionals performing duties within
such institution; however, regard must also be had to the public and/or social
importance of the role played by them and the institution, which necessarily
represent a State interest and duty and warrant supervision by the State.
B)
Rights and duties in the area of health care
4.
The instant case concerns a relevant issue that has garnered increasing
attention over the past few decades, as the doctor-patient relationship changes –
accompanied by a far-reaching revision of the principles of beneficence and respect
for autonomy –, the demand for health services increases and diversifies, disease
and survival patterns change, institutional or business providers emerge, and so on.
Patient rights – as well as the rights of health professionals – have thus gained new
prominence within the framework of basic human rights.
5.
The legal interests at stake and patient rights lie at the foundation of
medical professional liability, which combines both the principles and rules of
professional ethics governing medical practice and the technical rules to be