A Precedent For Legal Action

Over the last two decades, legal activists have effectively used human rights law to make healthcare provision more equitable, regardless of social, economic, ethnic, cultural, or other special status. Legal precedents have further reinforced the right to medical treatment in areas including children’s health, women’s reproductive health, chronic (non-infectious) disease and palliative care.63

Unsurprisingly, many of the precedents concern HIV treatment, reflecting the pioneering role of activists in HIV-AIDS treatment.

2002 The constitutional court of South Africa ordered the government to implement a national programme to reduce maternal transmission of HIV through the provision of antiretroviral treatment.64

2004 The constitutional courts of Peru and Argentina ruled that the state had to provide HIV treatment to poor individuals, regardless of the cost to the state.65,66

2010 Bolivia’s constitutional tribunal ruled that the government was obliged to provide HIV medication to children of poor families.67

The same imperatives also compel the treatment of TB – as affirmed by precedents from national courts and international tribunals, including the Committee on the Rights of the Child, the European Court of Human Rights (ECHR), and the African Court on Human and Peoples’ Rights.68

Judgments by the ECHR have required signatory states to provide treatment for TB in cases involving minors in state custody, with disabilities and to those with co-infection with HIV.

2007 Argentina’s Supreme Court ruled that the government had to treat members of the Toba, a marginalised aboriginal group, for TB. This was based, in part, on Argentina’s obligations under human rights treaties as well as the national and provincial constitutions.

2008 Colombia’s Supreme Court of Justice held that the state was required to treat an indigent woman for active TB, warning that, ‘disregarding this obligation would constitute a violation of fundamental rights’.

2010 In 2010, an Indian court condemned the death of a 16-year-old, who was in state custody, by deliberate medical neglect of TB as ‘gross and of a magnitude to shock the conscience of the court’.69