(a) Availability. Functioning public health and health-care facilities, goods and services,
as well as programmes, have to be available in sufficient quantity within the State
party…. They will include … the underlying determinants of health, such as safe and
potable drinking water and adequate sanitation facilities, hospitals, clinics and other
health-related buildings, trained medical and professional personnel….
(b) Accessibility. Health facilities, goods and services have to be accessible to everyone
without discrimination, within the jurisdiction of the State party.
(c) Acceptability. All health facilities, goods and services must be respectful of medical
ethics and culturally appropriate, … as well as being designed to respect confidentiality
and improve the health status of those concerned;
(d) Quality. As well as being culturally acceptable, health facilities, goods and services
must also be scientifically and medically appropriate and of good quality. This requires,
inter alia, skilled medical personnel, scientifically approved and unexpired drugs and
122
hospital equipment, safe and potable water, and adequate sanitation.
123.
On the other part and in order to give more content to the right to health in
connection with the rights to life and personal integrity, the Commission note that in comparative
law it the essential components of the medical obligation have been developed, that is: integrality,
opportunity and identity123.
2.2
Analysis of the facts of the case
124.
The petitioners argued that the death of Mr. Vinicio Poblete Tapia was the result of
medical negligence on the part of his attending physicians at the Hospital Sótero del Río for the
following reasons: (i) the surgery was performed without the consent of the family members; (ii)
after the surgery, Mr. Vinicio Antonio Poblete Vilches was discharged even though he was in critical
health; (iii) when readmitted to the Hospital Sótero del Río, Mr. Vinicio Antonio Poblete Vilches was
denied the care needed – he was not admitted to the Intensive Care Medical Unit, and he was not
given access to an artificial respirator; and (iv) Mr. Poblete Vilches’s death was caused by an
injection.
125.
The first point is related to the analysis of informed consent in the previous section
of this report. As for the fourth point, the Commission observes that it does not have sufficient
information to make a pronouncement in this respect, without prejudice to the analysis in the section
regarding the rights to judicial guarantees and judicial protection. The Commission underlines
moreover that in the instant case it is not called to analyze the general compliance with the state
obligations in relation to health for every person under its jurisdiction, but the case is regarding a
concrete health situation of an individualized person and, therefore, the Commission will address the
decision to discharge Mr. Poblete Vilches, as well as the treatment he received after being admitted to
the hospital the second time.
2.2.1
As regards the decision to discharge Mr. Poblete Vilches
126.
Mr. Poblete Vilches’s family members have consistently declared that after his first
admission to the Hospital Sótero del Río, where a procedure was performed on him, he returned
home with a very high fever, with fluid emanating from what they identified as “three wounds.” In
addition, they have indicated that in response to the worsening of Mr. Poblete Vilches’s health
122 United Nations, Economic and Social Council, Committee on Economic, Social and Cultural Rights. General
Comment No. 14.
123 Regarding the content of each element see: Consejo de Estado, Colombia, Third Section. Judgment of February 18,
2010; rad 18524; CP. Enrique Gil Botero. See also: Constitutional Court of Colombia. Judgment T- 536, 2007 (MP Humberto
Antonio Sierra Porto), T- 421 of 2007 (MP Nilson Pinilla Pinilla), Constitutional Court. Judgment T- 635, 2001 (MP Manuel José
Cepeda Espinosa).
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