July 28, 2023

Read the Spanish version.

Washington, D.C./Bogotá, Colombia — On July 26, the Constitutional Court of Colombia released its decision in the judgment T-237, ordering the Ministry of Health to regulate so-called “ethical triages” during health emergencies in the country. In the decision published this week, the Court recognized that the Ministry failed to regulate prioritization decisions for access to health services during the COVID-19 pandemic, jeopardizing the rights to health and to equality and nondiscrimination of the users of the Colombian health system.

The decision came after 26 people with disabilities, individuals over 60 years of age, and individuals with chronic health conditions — with the support of the Health and Human Rights Initiative and the Action Program for Equality and Social Inclusion (PAIIS) at the Universidad de los Andes Law School — filed a “tutela,” a constitutional lawsuit in 2021 against the Ministry of Health. The lawsuit asked the Ministry to issue clear guidelines that prevent discrimination in the development and implementation of ethical triage recommendations in the context of the COVID-19 pandemic. In the judgment T-237 of July 2023, the First  Chamber of Review of the Constitutional Court ruled in their favor and ordered the Ministry of Health to issue binding regulations on the matter.

The Court recognized that the recommendations published by the Ministry of Health in March 2020 were not binding, and that the Ministry failed to issue binding regulations despite having the competence to do so. The Ministry, therefore, allowed local health authorities to adopt a range of distinctive criteria, generating a “regulatory dispersion,” and allowed prioritization for admission to Intensive Care Units to be carried out in some parts of the country using criteria that created a risk of discrimination in health for older people and/or with disabilities.

In its decision, the Court granted the Ministry of Health 10 days to initiate “the actions aimed at promoting the regulatory adjustments that it deems necessary to adopt a general and binding act that contains the general technical, ethical and legal framework, with a bioethics and human rights approach, on prioritization exercises in exceptional situations.” Likewise, the Court set a maximum period of one year for the Ministry to issue a legally binding document with clear rules for prioritization. The Court highlighted that, although today there is no saturation in health services, it may be necessary to face new crisis situations that produce scarcity and require prioritization in access to health services and technologies.

The Court warned that the process of creating this document must be transparent, participatory, and have the contributions of people with disabilities, older people, and civil society organizations that represent them, along with bioethics advisory bodies, and with monitoring by  Office of the Attorney General of the Nation and the Ombudsman’s Office.  The Court also ordered that this document set clear standards that do not allow discrimination based on disability and/or age, or criteria such as “long-term survival,” “functionality,” or similar — which, despite appearing neutral, end up discriminating against these populations.

The Court found that establishing clear rules on how and when to carry out prioritization exercises in exceptional contexts of scarce health resources will bring clarity for health service providers, will promote medical autonomy, and contribute to “reducing the stress and emotional burden” to which health professionals may be subjected when having to make prioritization decisions without clear parameters. In addition, this document will contribute to ensuring that all people are treated with clear, uniform criteria and without discrimination based on their age or disability.

The petitioners and the organizations that supported this action celebrate the decision of the Constitutional Court. “This decision is very important because it shows that the prioritization of scarce health resources in an emergency cannot escape the scrutiny of the Constitution because it is fundamentally a matter of rights,” said Silvia Serrano, associate director of the Health and Human Rights Initiative of the O’Neill Institute. “The assumption that disability or age were acceptable criteria for making these decisions was not a problem exclusive to Colombia. Therefore, in addition to allowing due anticipation of future emergencies in the country, this decision can have a global impact. It is an example of the role of the judiciary in ensuring that the principle of non-discrimination not only is not diluted under the excuse of an emergency, but that it also informs the response of governments and actors.”

Juliana Bustamante, director of PAIIS, stressed, “It is great news that the Court has explicitly recognized the need to regulate this matter, thus ending the possibility that, based on imaginations and prejudices, it would end up granting greater value to some lives than to others in emergency situations. The pandemic exposed the enormous risks that historically marginalized populations face if there are no clear human rights criteria to address crises of this type.”

Rafael Pabón, one of the petitioners, also celebrated the decision, saying “It is a joy and an act of Justice…This decision advances in guaranteeing that there are defined and general protocols and that these decisions are not made solely based on personal biases that health professionals may have. We hope that in a participatory way, the Minister of Health defines the criteria to guarantee the equality of all people in emergency situations or calamities.”

Read the full decision here. 

Personas de contacto:
To interview Silvia Serrano, please contact Cynthia Sun at Cynthia.Sun@georgetown.edu.