Analysis of jurisprudence of the Supreme Court about high-cost medications in Chile through protection actions

Abstract

This article analyzes a set of protection actions related to the provision of high-cost drugs that were ruled by the Chilean Supreme Court between 2017 and 2022. The sample includes 132 cases that encompass all protection actions in which the right to life is affected, requesting access to high-cost medications as defined by Article 5 of Act 20.850, using search keywords such as “high-cost disease,” “high-cost treatment,” “high-cost drugs,” and “right to health.” All rulings were collected in full text from the Supreme Court's jurisprudence search engine and the health compendium of the highest court. Our primary purpose is to critically examine the identified jurisprudential criteria. To achieve this, we systematically present the arguments put forth by the Court when ruling on these actions. Subsequently, we connect these criteria to the relevant constitutional debate and underlying theories of health justice. Finally, we offer some concluding thoughts based on the conducted inquiry. Our main conclusion is that the Supreme Court's jurisprudence is problematic because it exceeds the competencies of a court, interfering with the powers of the democratic legislator and the technical health authority, thereby undermining the effectiveness of a public health policy.