17
health care. Specifically, the State must provide care for the elderly with chronic diseases and
those who are terminally ill, sparing them unnecessary suffering.”89 Subsequently, in 2013, in
the Case of García Lucero v. Chile in which “[the victim] is in a particularly vulnerable
situation,” the Court observed “that it ha[d] been proved that Mr. García Lucero [was] 79
years old.”90
53.
During the second stage, we find that the leading case with regard to older persons is
the Case of Poblete Vilches et al. v. Chile, which was decided by the Inter-American Court in
2018.91 This case provided the Court with its first opportunity to address in a detailed manner
the special situation of vulnerability and discrimination experienced by older persons. In
addition, in the judgment “age” was considered a vulnerable category that – although not
expressly mentioned in Article 1 of the Pact of San José – could be interpreted in the same
way as other implicit categories within the category of “or any other social condition.”
Therefore, in the case of older persons, the prohibition of discrimination based on age is
protected by the American Convention.
54.
This ruling added that “the Court has indicated that age is also a category protected
by that provision” as it interpreted in Advisory Opinion No. 18 on the Juridical Condition and
Rights of Undocumented Migrants.92 Consequently, the prohibition of discrimination in the case
of older persons entails, among other matters, the application of inclusive policies for the
whole population and ensuring ease of access to public services.93
55.
It should be emphasized that the Case of Poblete Vilches94 was the first precedent in
which the Court declared a violation of the right to health as an autonomous right. In this
case, it addressed the violation of rights from the perspective of their impact on a person’s
age and the particular circumstances of the case in relation to substitute informed consent
and how urgent medical services should be understood when the right to health of an older
person is involved.95
56.
Finally, it is important to emphasize some measures of reparations that, if the special
situation of vulnerability had not been addressed, would have been developed using other
parameters. Thus, the judgment ordered: (i) reinforcement of the National Institute of
Geriatrics and its impact on the hospital network; (ii) design of a publication or leaflet
containing the rights of older persons in the area of health care, and (iii) adoption of the
Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, reparations and costs. Judgment of June
17, 2005. Series C No. 125, para. 175
89
Case of García Lucero et al. v. Chile. Preliminary objections, merits and reparations. Judgment of August 28,
2013. Series C No. 267, para. 231.
90
Cf. Case of Poblete Vilches et al. v. Chile. Merits, reparations and costs. Judgment of March 8, 2018. Series C
No. 349.
91
Juridical Condition and Rights of Undocumented Migrants. Advisory Opinion OC-18/03 of September 17, 2003.
Series A No. 18, para. 101.
92
Cf. Case of Poblete Vilches et al. v. Chile. Merits, reparations and costs. Judgment of March 8, 2018. Series C
No. 349, para. 122.
93
For an assessment of this case and its importance, see the interesting opinions contained in the compendium:
Morales Antoniazzi, Mariela, and Clérico, Laura (coords.), Interamericanización del derecho a la salud. Perspectivas a
la luz del Caso Poblete de la Corte IDH, Instituto de Estudios Constitucionales del Estado de Querétaro, Querétaro,
2019.
94
Cf. Case of Poblete Vilches et al. v. Chile. Merits, reparations and costs. Judgment of March 8, 2018. Series C
No. 349, para. 142.
95