The Argentine Supreme Court ordered a healthcare insurance provider to cover the cannabis oil treatment for a minor with refractory epilepsy

On October 21^st, 2021, the Argentine Supreme Court (“CSJN”, after its acronym in Spanish) decided by majority in the case “B., C. B. y otro c/ IOSPER y otros s/ acción de amparo” that the healthcare insurance provider Instituto de Obra Social de la Provincia de Entre Ríos ("IOSPER", after its acronym in Spanish) must cover one hundred percent (100%) of the cannabis oil treatment of A.M., a patient with refractory epilepsy, in the doses indicated by his neurologist and in accordance with Executive Decree No. 883/2020.

A.M.'s parents, on behalf of their minor child, filed an amparo (appeal for constitutional protection of fundamental rights) against IOSPER and, in subsidy, against the Province of Entre Ríos, for them to cover the cost of the minor's treatment with cannabis oil, which had demonstrated to have significant benefits for his health.

Although the court of first instance upheld their claim, the Supreme Court of Entre Ríos rejected the action on the grounds that Law No. 27,350 and its complementary regulations in force at the time (Executive Decree No. 738/2017 and Ministry of Health Regulation No. 1537-E/2017), did not provide for such obligation.

The plaintiffs filed an extraordinary federal question appeal, which was granted, and while the case was ongoing, the Executive Branch issued Decree No. 883/2020 (Official Gazette of November 12, 2020) which regulates Law No. 27,350. Executive Decree No. 883/2020 in its annex explicitly stated the legal obligation of private healthcare insurance providers to provide healthcare coverage for the acquisition of cannabis plant derivatives to those patients with a medical prescription (see more here).

In brief, according to the CSJN jurisprudence, when new rules on the subject matter of the case have been issued during the proceeding, the court decision must also take into account the amendments introduced by those provisions if those circumstances cannot be disregarded. Finally, the CSJN based its decision to a greater extent on this new regulatory change, granted the extraordinary federal question appeal, revoked the appealed decision, and upheld the amparo. 

In this context, it is worth mentioning that the General Attorney and Rosatti Judge (by his concurring opinion) made a comprehensive interpretation of the regulatory framework applicable to health rights and to the protection of people with disabilities. They criticized the Supreme Court of Entre Ríos for its restrictive interpretation, and both presented a full analysis of the regulatory framework applicable to the case. They considered that the provisions applicable to healthcare coverage of persons with disabilities set forth in Law No. 24,901 (which includes the system of basic benefits in favor of persons with disabilities) and also in Law No. 25,404 (which provides special protection measures for persons suffering from epilepsy) must be considered in the present case and must be interpreted in the light of constitutional provisions and international treaties. In this regard, they took into consideration the jurisprudence of the CSJN on the right to health and comprehensive protection of persons with disabilities, and the provisions set forth in Section 75.23 and 75.22 of the Argentine Constitution; the American Convention on Human Rights; the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of Persons with Disabilities. Finally, they both concluded that even if Law No. 27,350 does not expressly state it and/or the drug is not included in the list of the Mandatory Medical Program (“PMO”, after its acronym in Spanish), IOSPER must still be obliged to cover the treatment in question for the minor.