66.
Both the IACHR and the Court have pronounced on the relationship that exists between the
rights to life and humane treatment and the right to health,95 while the Inter-American Court has consistently
interpreted that the rights to life and humane treatment are directly and closely linked with human health
care,96 and that “lack of adequate medical attention” may contribute to their breach.97 Furthermore, both bodies
have held that States are responsible for regulating at all times the rendering of services and the
implementation of the national programs regarding the performance of public quality health care services so
that they may deter any threat to the right to life and the physical integrity of the individuals undergoing
medical treatment.98
67.
The Court has written that “the right to life is a basic human right [that] ... encompasses ... also
the right not to be denied the conditions required to ensure a decent existence,” 99 which case law has
interpreted as also including the provision of, among other things, health care services.100
68.
The Commission also finds that the regulation and control of treatment coverage through
publicly or privately financed systems must take into account the special situation of children with disabilities.
In such circumstances, the Commission has established prima facie within the framework of a precautionary
measure regarding a girl with disabilities that the state of health and lack of comprehensive support could
endanger the rights to life and human treatment.101 Similarly, the IACHR notes that the development of the
rights of children with disabilities recognizes the right to live independently and be included in the community,
and by implication, therefore, the right to grow in the family environment, as well as "the existence of adequate
and age-appropriate support services for children with disabilities is essential for them to be able to enjoy their
human rights on equal terms."102
3.
Analysis of the case of Martina Vera Rojas in her condition as a girl with disabilities
69.
In this case, the Commission will analyze the possible violations of the rights to health, social
security, life and humane treatment based on the regulations governing the withdrawal the in-home care
regime, the systems for bringing challenges to restore the treatment to Martina, and the responses to those
challenges.
70.
As established in the proven facts, the Isapre determined that Martina Vera Rojas's disease
was a chronic illness and, therefore, based on Circular No. 7, decided that suspension of RHD was appropriate.
71.
The Commission considers that, based on the right to health, the regulation and oversight of
the elements governed by health systems, not only as regards final provision of the service, but also the design
of the system’s financing through private insurance firms, is a prerogative of the State that must be understood
as part of its obligations in terms of creating conditions that assure medical assistance and medical services for
all in the event of illness. In the opinion of the IACHR, that aspect demonstrates the indivisibility and
95.
IACHR, Report No. 102/13, Case 12.723, Merits, TGGL, Ecuador, November 5, 2013. IACHR, Report: Access to Maternal Health
Services from a Human Rights Perspective, June 7, 2010, Section II.
96.
I/A Court H.R., Case of Suárez Peralta v. Ecuador, Preliminary Objections, Merits, Reparations, and Costs, Judgment of May 21,
2013. Series C. No. 261, par. 130; and Case of Vera Vera et al. v. Ecuador, Preliminary Objection, Merits, Reparations and Costs . Judgment of
May 19, 2011. Series C. No. 226, par. 43.
97.
I/A Court H.R., Case of Suárez Peralta v. Ecuador, Preliminary Objections, Merits, Reparations, and Costs, Judgment of May 21,
2013. Series C. No. 261, par. 130; Case of Tibi v. Ecuador, Preliminary Objections, Merits, Reparations and Costs. Judgment of September 7,
2004. Series C. No. 114, par. 157; and Case of Vera Vera et al. v. Ecuador, Preliminary Objections, Merits, Reparations and Costs. Judgment
of May 19, 2011. Series C. No. 226, par. 44.
98.
I/A Court H.R., Case of Ximenes Lopes v. Brazil. Preliminary Objection. Judgment of November 30, 2005. Series C. No. 139, par.
99. See also IACHR, Report No. 102/13, Case 12.723, Merits, TGGL, Ecuador, November 5, 2013.
99.
I/A Court H.R., The “Street Children” Case (Villagrán Morales et al.) v. Guatemala, Merits, Judgment of November 19, 1999,
Series C. No. 63, par. 144 and 191.
100 .
I/A Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay, Interpretation of Judgment on Merits, Reparations,
and Costs, Judgment of February 6, 2006, Series C. No. 142, par. 161; Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Merits,
Reparations, and Costs, Judgment of March 29, 2006, Series C. No. 146, and Case of the Xakmok Kasek Indigenous Community v. Paraguay,
Merits, Reparations, and Costs, Judgment of August 24, 2010, Series C No. 214, pars. 194-217.
101
IACHR, Matter of Irene regarding Argentina, Precautionary Measure No. Resolution 38/2016, July 7, 2016, par. 26.
102
Committee on the Rights of Persons with Disabilities, General Comment No. 5 (2017) on living independently and being
included in the community, CRPD/C/GC/5, 27 October 2017, paras. 19, 74 and 75.
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