interdependence of the right to social security as it relates to health care plans and the right to health, where
the former acquires an instrumental or procedural character for satisfying the content of the latter. When such
plans are managed by private firms, the State has the obligation to ensure that the design and administration
of medical insurance take into account the different elements of the rights to social security and health. Hence,
the state’s obligation to ensure the effectiveness of human rights produces effects on relations between
individuals, who consequently have the obligation to respect them; that is, as regards insurance companies, for
instance, the pursuit of profit and economic gain in the medical insurance system must not nullify enjoyment
of the rights protected by the American Convention.
72.
In this case, due to the nature of her illness, Martina received special coverage for catastrophic
illnesses, which was precisely designed for complex and costly diseases. This coverage allowed her to receive
health care services that, according to the information available, were appropriate for treating her serious
health condition, reducing the risks of greater harm, and ensuring a decent life insofar as possible.
73.
The Commission observes that the current regulation allows for withdrawing RHD on the
grounds of chronicity. As has been demonstrated in this case, whether a disease is chronic or not can be difficult
to determine and involve a sizable degree of ambiguity and discretion. This is problematic, bearing in mind
how decisive such a determination could be for the health of patients who require catastrophic coverage
precisely due to the severity of their illness. The State itself acknowledged that "there is no single, special
procedure by which insurers can declare that a certain disease is chronic." Furthermore, the regulation offers
no apparent safeguards, such as the requirement to assess the situation in which the person would be left in
the event of withdrawal of RHD and its implications for their rights to health, life and human treatment.
74.
Having analyzed Circular No. 7, the Commission notes that the rules on withdrawal of RHD do
not establish any type of safeguard with regard the specific impact that such a decision could have on children,
who have a special status. In that regard, the Commission recalls that the State has a special duty to protect
children because of their progressive physical, cognitive, emotional, psychological, and social development.103
That duty is heightened when it comes to the enjoyment of the highest attainable standard of health by children,
by virtue of their best interests. In this case, the Commission considers that neither the rules and regulations
nor the system for challenging decisions made any consideration for Martina's status as a child.
75.
That much was reflected in this specific instance, where the service was withdrawn by means
of simple notice invoking an expert medical opinion—in relation to which the doctor himself later clarified that
he had never concluded that Martina’s illness was chronic—without any additional verification or
determination as to whether her life, health, and integrity might be affected by the immediate withdrawal of
RHD, in breach of its obligation to create conditions for ensuring health care. As will be seen below, the CSJ
ultimately validated this action on the part of the Isapre without making any assessment of the situation in
which Martina would be left as a result of its decision or of the possibilities of providing her a service on whose
need and propriety there was a medical consensus. That decision by the CSJ constituted a breach of its duty to
oversee the actions of the Isapre and its implications for the rights of a girl with a disability who should have
been accorded special protection by the State.
76.
The IACHR finds that financial accessibility should be one of the characteristics of the right to
health, which implies that health facilities, goods, and services should be affordable for all, including socially
disadvantaged groups. In this regard, the Commission considers that the availability and creation of the CAEC
meant that RHD was affordable for Martina at first; however, after the decision of the CSJ, there is no evidence
that the State took steps to ensure that the aforementioned regime remained in place or to compensate for the
impact of the reduction in her medical coverage, undermining the financial accessibility of the treatment that
her illness required, as the petitioners’ account of the impact of the withdrawal of RHD on the family shows.
77.
In line with the foregoing, the Commission finds that the system of challenges available to
insureds in the event of a disagreement with their insurance coverage has a standard configuration. In that
regard, as the record shows, a claim for undue collection, for example, has the same procedure as a claim against
the withdrawal of treatment for catastrophic illness, notwithstanding the impact that the latter may have on
the health, life and integrity of a person. In that sense, the Commission considers that the systems of protection
103
IACHR, Violence, Children, and Organized Crime, OEA/Ser.L/V/II., Doc. 40/15, November 11, 2015, par. 271.
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