functions can have an impact on the rights to health, life, and humane treatment of people under the jurisdiction
of the State. In the present case, under the domestic rules and regulations, Isapres are private-law entities;
however, as the proven facts show, they are accorded functions that can be decisive in terms of health care
services that a person may or may not receive. Although the Isapres, as insurers, do not provide the health care
service directly, they are in charge of managing the contributions that enable the patient to receive said service.
Therefore, in this area of the Chilean health care system, it is impossible to envisage final delivery of health care
without the involvement of the Isapres. Accordingly, “[t]hough the States may delegate the rendering of such
services, through the so-called outsourcing, they continue being responsible for providing such public services
[...,] protecting the public interest concerned," overseeing their execution, and ensuring effective protection for
human rights as well as access to services without discrimination and in the most effective way possible.72
49.
In this case, the Commission finds that the Isapre Masvida SA, a private entity, was authorized
by the State to manage the health insurance contributions of workers for their final care in clinical care
networks, under the supervision of of the Superintendency of Health. Therefore, the Commission will analyze
the Isapre's acts in relation to the decision to withdraw in-home care (RHD) in the light of the State’s duties in
the area of regulation and oversight, in the terms described. That includes the response offered through the
internal proceedings by which the family challenged the removal of the RHD.
1.
General Considerations in relation to Article 26 and the rights to health and social
security
50.
Article 26 of the Convention establishes the obligation that any measures adopted in the area
of the economic, social, and cultural rights covered in that provision tend toward their progressive
development. Although both organs of the inter-American system have asserted their competence to
pronounce on possible violations of Article 26 of the American Convention within the context of the system of
individual cases and petitions,73 that provision has been little developed in the case law of the inter-American
system in relation to contentious cases. In its findings in such matters, the Court has emphasized the
interdependence and indivisibility that exists between economic, social, and cultural rights and civil and
political rights.74
51.
The Commission recognizes that there may be certain complexities to interpreting Article 26
of the Convention and precisely determining its scope and content. Accordingly, the Commission considers it
necessary to elaborate on some of its previous statements in that regard, specifically with respect to what it
considers an adequate methodology of analysis that takes account of the text of the provision but interprets it
in a manner consistent with developments seen in this area at the international level that are highly useful for
unraveling its scope and content.
52.
Thus, the Commission considers that any analysis of a specific case in the light of Article 26 of
the American Convention should be done on two levels. First, it is necessary to establish if the right with which
the case is concerned derives from “the economic, social, educational, scientific, and cultural standards set forth
in the Charter of the Organization of American States” to which Article 26 refers. In other words, Article 26 of
the American Convention recognizes the Charter of the OAS as a direct source of rights and ascribes the
Charter’s provisions in that regard the character of human rights. Given that the purpose of the Charter of the
OAS was not to identify individual rights, but to establish an international organization, auxiliary texts must be
relied on to identify the rights that arise from the provisions contained in that instrument.
72.
I/A Court H.R., Case of Ximenes Lopes v. Brazil, Judgment of July 4, 2006. Series C. No. 149. par. 96.
73.
See, for example, a number of admissibility reports in which the possible violation of Article 26 of the American Convention
has been accepted: Report 29/01, Case 12.249, Jorge Odir Miranda Cortez et al., El Salvador, March 7, 2001; and Report 70/04, Petition
667/01, Admissibility, Jesús Manuel Naranjo Cárdenas et al. (Pensioners of the Venezuelan Aviation Company - Viasa), Venezuela,
October 13, 2004. See also the core finding on Article 26 Report 38/09, Case 12.670, National Association of Ex-Employees of the
Peruvian Social Security Institute et al., Peru, March 27, 2009. Likewise, the Court reaffirmed that competence in the case of Acevedo
Buendía et al. (“Discharged and Retired Employees of the Office of the Comptroller”) v. Peru, Preliminary Objection, Merits, Reparations
and Costs, Judgment of July 1, 2009.
74.
See, for example, I/A Court H.R., Case of Lagos del Campo v. Peru, Preliminary Objections, Merits, Reparations, and Costs,
Judgment of August 31, 2017, Series C No. 340, par. 141; and Case of Acevedo Buendía et al. (“Discharged and Retired Employees of the
Office of the Comptroller”) v. Peru, Preliminary Objection, Merits, Reparations and Costs, Judgment of July 1, 2009. par. 101.
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