December 3, 2023
Today, the Health and Human Rights Initiative (HHRI) of the O’Neill Institute joins communities around the world in observing the International Day of Persons with Disabilities. The rights of persons with disabilities — recognized in numerous international treaties — must be protected, respected, and guaranteed. The HHRI stands firmly behind this conviction and is working to advance the rights of persons with disabilities, with a focus on their right to health without discrimination and their right to live in their communities.
In the case of Martina Vera Rojas vs Chile, litigated by the HHRI and Karinna Fernandez, the Inter-American Court of Human Rights (IACtHR) issued a landmark judgment on the right to health in the Inter-American human rights system. The judgment clarified that the right to health extends to palliative care and rehabilitation, particularly in cases of children with disabilities, and that states have a duty to regulate, monitor, and oversee the activity of all public and private actors that finance the healthcare system.
We have expressed our concern about the discrimination that people with disabilities faced during the COVID-19 pandemic, particularly in the context of prioritization for access to vital care. In 2023, the Constitutional Court of Colombia released its decision in T-237, involving twenty-six people with disabilities, individuals over 60 years of age, and individuals with chronic health conditions — brought with the support of HHRI and the Program of Action for Equality and Social Inclusion (PAIIS). The lawsuit challenged regulations for prioritization of Intensive Care Unit access during the COVID-19 pandemic that created a risk of discrimination in health for older people and/or people with disabilities. Ruling in our favor, the Constitutional Court ordered the Ministry of Health to issue binding regulations to prevent discrimination in future situations of emergency or scarcity, with the participation of people with disabilities, older people, and the civil society organizations that represent them.
The HHRI and Colombara Legal Strategy Law Firm also filed a lawsuit in Chile on behalf of the family of Oscar Walter — a young man who died of COVID-19 after being discriminated against for having Down syndrome. Oscar was deprioritized and mistreated by health personnel. He was not provided with the medical attention he needed; he was not assigned a clinical bed, nor a mechanical ventilator. The authorities did not even attempt to transfer him to another healthcare center where he could receive proper care. We are demanding a finding of civil responsibility for the discrimination experienced and seeking both reparations and measures to prevent future discrimination of people with disabilities.
These cases reflect our findings in our submission to the Inter-American Commission on Human Rights (IACHR) on discrimination against persons with disabilities in access to health services. We emphasized that people with disabilities have experienced situations of discrimination in the contexts of prioritization of health resources during the pandemic and that states must adopt positive measures to ensure the right to health of people with disabilities and prevent discriminatory practices.
At the Inter-American level, the HHRI has also argued for the deinstitutionalization of persons with disabilities. The HHRI is a co-petitioner with Disability Rights International (DRI) in the case of “334 patients of the Federico Mora Hospital in Guatemala” (pending before the IACHR), concerning the institutionalization and horrific conditions of detention of 334 individuals at the Federico Mora Hospital in Guatemala, and the human rights violations perpetrated therein. We also argued before the IACtHR with DRI on behalf of the victims in “Casa Esperanza,” focusing on Mexico’s international responsibility for a series of human rights violations against 37 persons with disabilities, including children and adolescents, who were institutionalized in “Casa Hogar Esperanza para Deficientes Mentales” (Home for the Mentally Deficient). These cases take place in the broader context of human rights violations in institutional settings, such as group homes, and highlight the urgency of deinstitutionalizing people with disabilities to guarantee their human rights — including their right to live in the community with the support they require.
Today, on the International Day of Persons with Disabilities, we reiterate our commitment to continue working for the health and human rights of all individuals, and particularly those with disabilities.