The SCJN in health, the new 'Chapulín Colorado'

In the memory of many of those who will appear in this column is the famous character “Chapulín Colorado” created and starring the late Roberto Gómez Bolaños in his television series that began in 1970. In the program, the Chapulín de as follows: “More agile than a turtle… stronger than a mouse… more noble than a lettuce… his shield is a heart… he is… El Chapulín Colorado!”

When a problem arose in any of the programs, the characters asked themselves: Now who will be able to defend us? And the answer was always El Chapulin Colorado! And comically, he almost always resolved the situation.

The Supreme Court of Justice of the Nation (SCJN) since its empowerment with the constitutional reform that fully incorporated human rights centered on the person in 2011, has now become the new “Chapulín Colorado” and without a doubt, many issues of the health of Mexicans will be reaching out to said judiciary to make effective, when the State does not comply, the right to health protection incorporated (1983) and the right to health for well-being (2020). I will tell you, dear readers, two examples of recent relevant sentences.

On May 26, 2022, the second chamber of the SCJN resolved by contradiction of thesis 152/2021, that private sector medical personnel must be vaccinated against the SARS-CoV-2 virus under the same conditions as public sector health personnel. , since, in terms of the General Health Law, they are all part of the National Health System. When the unforgivable López-Gatell denied the vaccine to all the doctors in the private sector who were in the first line of contact with patients infected with the virus or medical surgeons who provided medical care to said patients on a daily basis, the schools and associations They wondered who could defend them? And they went before the judiciary claiming the negligent omission of the federal authorities. The route was not easy, since a couple of collegiate circuit courts reached discrepant conclusions when analyzing whether the suspension should be addressed ex officio or at the request of a party and whether the precautionary measure should be granted in the cases in which said omission was claimed.

Caricature of Dr. Francisco Javier Domínguez Garibaldi

It is now clear that the decision of “los López” -Obrador and Gatell- constituted an act that violated human dignity for being discriminatory with respect to their medical peers who worked in the public sector. By not being vaccinated, doctors provided their services without the necessary immunological protection to reduce the chances of contagion or avoid developing serious forms of the disease. Such a situation not only affected the personal sphere of doctors as they were aware of the consequences of not having said immunological protection, but also transcended the general interest of society as they were essential to face the pandemic and, therefore, to that the State is able to guarantee the right to health and life of the population. He ended by noting that a problem started in March 2021 was resolved fourteen months later. The lateness of the resolution is an area of ​​opportunity for the SCJN, especially since on March 18, 2020, the General Health Council declared a national emergency due to COVID-19.

Another sentence where the Chapulín Colorado, invested as First Chamber of the SCJN, resolved was amparo 226/220, establishing what should be the standard of protection of the human right to health of patients with HIV/AIDS. A person with the Human Immunodeficiency Virus (HIV) filed an indirect amparo lawsuit against the Regional General Hospital Number 1 in Querétaro, of the Mexican Institute of Social Security. This is due to the fact that for a time he was not given the antiretroviral drug “Dolutegravir®”, which constituted an omission that put his life, health and physical integrity at risk. Later, the Hospital gave him the medicine, but the person continued the litigation so that the SCJN ruled on compliance with the obligation of the States to respect and guarantee the right to health and to give special care to vulnerable and marginalized groups. It was determined that his right was violated by not supplying the drug and found the authority responsible for failing to comply with various guarantees of the standard of protection of the human right to health, related to the timely, constant and permanent supply of medicines between other things.

There are many more sentences that answer the question: Who can defend us? The Chapulín Colorado: SCJN!

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