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III.-\nOn the best interests of the child and their right to health.- In the matter of the special rights that children have, there are various norms of constitutional, international, and infra-constitutional rank; all of them recognize the best interests of the child as the criterion for any public or private action concerning a person under eighteen years of age. \"The family, as the natural element and foundation of society, has the right to the special protection of the State. Likewise, the mother, the child, the elderly, and the helpless sick shall have the right to that protection,\" thus states Article 51 of our Magna Carta. In the same sense, la Convención on the Rights of the Child of the United Nations (approved and ratified by our country, through, la Ley No.\n7184 of July 18, 1990, which entered into force, according to numeral 2 of that legal instrument, on the day of its publication in La Gaceta No. 149 of August 9, 1990), establishes a series of rights for any child, regardless of race or nationality (Article 2), such as: the right to be cared for by their parents (Article 7), the right to a \"standard of living adequate for the child's physical, mental, spiritual, moral and social development\" recognizing parents as the primary responsible for providing the living conditions necessary for their development and the State's duty to adopt \"appropriate measures to assist parents and others responsible for the child to implement this right\" (Article 27), and in the case of a mentally or physically disabled child, the right to \"enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community\" in addition to \"special care\" (Article 23). On the other hand, la Declaración Universal\nde Derechos Humanos of December 10, 1948, specifies in its Article 16, paragraph 3, that \"The family is the natural and fundamental group unit of society and is entitled to protection by society and the State\" (in identical sense Article 23, paragraph 1, of the International Covenant on Civil and Political Rights of December 19, 1966). For its part, Article 25, paragraph 2, of the aforementioned Declaration indicates that \"Motherhood and childhood are entitled to special care and assistance...\" and, finally, in Article 24, paragraph 1, it is established that \"Every child shall have, without any discrimination... the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State\". From the norms of the international instruments on Human Rights transcribed, it results, clearly, that States have as fundamental duties the protection of the best interests of the child. Human or fundamental rights and the correlative obligations of public powers have also been developed at the infra-constitutional level; we thus have the Code of la Niñez y de la Adolescencia in general and la Ley\nde Igualdad de Oportunidades para las Personas con Discapacidad, when it also concerns a child with special needs. Thus, the Code of la Niñez y de la Adolescencia (Ley No.\n7739) points out that the interpretive guide for any public or private action must be the best interests of the child (Article 5). Ordinal 12 of that normative body stipulates that the State must guarantee the right to life \"with economic and social policies that ensure dignified conditions for gestation, birth, and integral development.\" Numeral 29 establishes the obligation of the father, the mother, or the responsible person to \"ensure the physical, intellectual, moral, spiritual, and social development of their children under eighteen years of age\" and to \"comply with the instructions and controls prescribed to ensure the health of minors under their care\" (Article 45). For its part, in addition to all that has been said, when the child requires special needs due to their disability, understood as \"a physical, mental, or sensory impairment, whether permanent or temporary, that limits the capacity to perform one or more essential activities of daily life, which may be caused or aggravated by the economic and social environment\" (Article I of la Convención Americana\npara la Eliminación\nde todas las Formas de Discriminación contra las Personas con Discapacidad), the rights of disabled persons, also recognized in international norms (Convención Americana para la Eliminación de\ntodas las Formas de Discriminación contra las Personas con Discapacidad ratified by la\n Asamblea Legislativa through Ley N°\n7948) and with legal rank la Ley\nde Igualdad de Oportunidades para las Personas con Discapacidad N° 7600, published in La Gaceta of May 29, 1996, are also applicable. Thus, disabled persons must be guaranteed equal opportunities, through the elimination of all socially determined obstacles, whether physical, economic, social, or psychological that exclude or restrict their full participation in society; in this sense, Article 2 defines early stimulation when it says it is all that \"care provided to the child between zero and seven years of age to enhance and develop to the maximum their physical, intellectual, sensory, and affective possibilities, through systematic and sequenced programs that encompass all areas of human development…\" and Article 13 of la Ley General de Salud\nNo. 5395, of October 30, 1973, when it recognizes the duty of parents and the State to ensure the health and development of children: \"Children have the right to have their parents and the State ensure their health and their social, physical, and psychological development. Therefore, they shall have the right to state health benefits from birth until the age of majority. Children with physical, sensory, intellectual, and emotional disabilities shall enjoy specialized services.\". In conclusion, after all that has been said, it is clear that children are entitled to a series of special rights and correlatively, the State and the parents or those in charge of the children are subject to a series of obligations and duties towards them, even more so when it concerns the protection of their right to life and health.
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I dissent from the majority opinion and declare the filed appeal without merit. In matters concerning health services, such as the performance of examinations, consultations, treatments, or surgical interventions, la Sala has held that the State must ensure that they are granted without denial to the insured, as the right to health is involved. However, this Court has also been clear in stating that it is not its task to determine how much time is fair from a medical point of view to attend to sick persons, as this is the exclusive competence of the treating physician, who issues the respective criteria regarding these aspects, which must be respected by la\n Caja Costarricense de Seguro Social, as constitutional jurisprudence has held. In the specific case, I consider that there is no violation whatsoever of the protected party's rights, because the fact that she was placed on the waiting list for surgery is due to the fact that the treatment she currently receives greatly reduces the effects that the condition she suffers has on her health, as her treating physician states in his report. For the foregoing, I consider it improper for la Sala to order the respondents to perform the surgery on the minor, because by doing so, it allows the interested party to skip the waiting list merely through the filing of an amparo appeal, thus violating the right to health of the persons who are ahead of the protected party on the appointment list, and who suffer exactly the same condition as the petitioner, as stated by the respondents. On the other hand, from the evidence provided in the case file, and from the reports rendered under oath by the respondents, it is deduced that the protected party has received the medical treatment she requires at the Hospital Nacional de Niños, which is why I consider that the interested party has not been denied access to the health services provided by la Caja Costarricense\nde Seguro Social.\n\nThus, based on the foregoing, I consider that the appeal must be dismissed.\n\n**Adrián Vargas B.**\n\nTherefore, they shall be entitled to state health benefits from birth until the age of majority.\nChildren with physical, sensory, intellectual, and emotional disabilities shall enjoy specialized services.\".\nIn conclusion, after all that has been said, it is clear that children are entitled to a series of special rights, and correlatively, the State and the parents or guardians of children are subject to a series of obligations and duties towards them, even more so when it concerns the protection of their right to life and to health.\n\n**IV.- Regarding the specific case.-** Regarding the performance of examinations, treatments, or surgical interventions on persons, this Chamber has held that the State must ensure that they are provided within a reasonable time, without denial, because the right to health is involved. This, coupled with what was established in the preceding recital (considerando) regarding the best interests of the child, leads this Chamber to conclude that in this case, a violation of the protected minor's right to health has occurred. Indeed, from the report provided by the representative of the respondent authority —which is accepted as given under oath with the consequences, even criminal, provided for in Article 44 of the Law governing this Jurisdiction— it is verified that the protected minor indeed has a kidney disease requiring surgical intervention, and that despite this, such intervention was scheduled only for the month of June 2008, that is, TEN MONTHS later. In this regard, the respondent authorities indicate that such intervention is not urgent and that there are similar cases waiting. For this Constitutional Tribunal, these arguments are not admissible, since the minor, barely two and a half years old, must wait for treatment for a number of months that represents almost half of her lifetime. And although, after the filing of this appeal (recurso), the date was moved up to March 25, 2008 —and not June 2008 as originally scheduled—, such a time frame remains unreasonable, not only because of the minor's very young age, but also because the best interests of the child make it disproportionate for her to wait so long for surgical intervention, especially since it concerns a state institution whose vocation is the safeguarding of children's right to health. Furthermore, while the months of waiting pass, the quality of life of the minor, having to take an alternative treatment that does not resolve her condition, is diminished. Thus then, given that the time frame to perform the surgical intervention on the protected minor is disproportionate —even with the date moved up— the appeal (recurso) must be granted, and the immediate scheduling of the surgical intervention must be ordered. **Judge Vargas dissents (salva el voto) and declares the appeal (recurso) without merit.\"**\n\n\"I depart from the majority opinion (criterio) and declare the filed appeal (recurso) without merit. In matters concerning health services, such as the performance of examinations, consultations, treatments, or surgical interventions, the Chamber has held that the State must ensure that they are granted without denial to insured persons, because the right to health is involved. However, this Tribunal has also been clear in asserting that it is not its place to determine what time frame is just from a medical standpoint for treating sick persons, since this is the exclusive competence of the treating physician, who issues the respective opinions regarding these aspects, which must be respected by the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), as constitutional jurisprudence has held. In the specific case, I consider that there is no violation whatsoever of the protected person's (amparada) rights, since the fact that she was placed on the waiting list for surgery is due to the fact that the treatment she currently receives greatly reduces the effects that her condition has on her health, as her treating physician indicates in his report. For the foregoing, I consider it improper for the Chamber to order the respondents to perform the surgery on the minor, because in doing so, it allows the interested party to skip the waiting list merely by filing an amparo appeal (recurso de amparo), thus violating the right to health of the persons who are ahead of the protected person (amparada) on the appointment list, and who suffer exactly the same condition as the person under protection (tutelada), as stated by the respondents. On the other hand, from the evidence provided in the case file (autos), and from the reports made under oath by the respondents, it is deduced that the protected person (amparada) has received the medical treatment she requires at the National Children's Hospital (Hospital Nacional de Niños), for which reason I consider that the interested party has not been denied access to the health services provided by the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social). Thus, based on the foregoing, I consider that the appeal (recurso) should be dismissed.\"\n\nRequests that the recourse filed be dismissed.\n\n**3.-** EDUARDO DORYAN GARRON, in his capacity as Executive President of la Caja Costarricense de Seguro Social, reports under oath (folio 053), exactly in the same sense as the previous respondent, adding that at no time is the performance of the intervention she requires being denied but rather that she is on a waiting list, and therefore the medical protocol establishing priorities for performing surgical interventions must be followed, respecting the criteria of priority and equality of patients. Requests that the recourse filed be dismissed.\n\n**4.-** In the proceedings followed, the legal prescriptions have been observed.\n\nDrafted by Magistrate **González Quiroga**; and,\n\n**Considering:**\n\n**I.- Purpose of the recourse.-** The petitioner, mother of the protected minor, considers that the minor's right to health is being violated because, despite the medical opinion having already determined that her daughter's condition would only improve with a surgical intervention, such intervention has not been scheduled, but rather she has only been given an appointment for June 2008.\n\n**II.- Proven facts.-** Of importance for the decision in this matter, the following facts are deemed duly demonstrated, either because they have been accredited or because the respondent has omitted to refer to them as prescribed in the initial order:\n\na. That the minor was seen for the first time on August 22, 2007 at the respondent Hospital, referred by general pediatrics for presenting grade III bilateral vesicoureteral reflux. On that same day, a hospitalization (internamiento) order was issued for the surgical correction of the condition (report at folio 020).\n\nb. That the respondents decided, in this case, on surgical management associated with medical management with antibiotics (report at folio 021).\n\nc. That according to the attending physician's opinion, as long as the minor is on antibiotics, the possibility of deterioration of the urinary tract is low (report at folio 022).\n\nd. That there is a waiting list with patients with the same diagnosis and whose hospitalization (internamiento) orders were issued earlier (report at folio 021).\n\ne. That after the filing of this recourse, the protected party was given a hospitalization (internamiento) date for surgical resolution for March 25, 2008 (report at folio 021).\n\n**III.- On the best interests of the child and their right to health.-** In matters of the special rights held by children, there are various norms of constitutional, international, and infra-constitutional rank; all of them recognizing the best interests of the child as the guiding criterion for any public or private action concerning a person under eighteen years of age. \"The family, as the natural element and foundation of society, has the right to the special protection of the State. Likewise, the mother, the child, the elderly, and the destitute sick shall have the right to that protection,\" so states Article 51 of our Magna Carta. In the same sense, la Convención sobre los Derechos del Niño of the United Nations (approved and ratified by our country through Ley No. 7184 of July 18, 1990, which entered into force, according to numeral 2 of that legal instrument, on the day of its publication in La Gaceta No. 149 of August 9, 1990), establishes a series of rights for any child, regardless of their race or nationality (article 2°), such as: the right to be cared for by their parents (article 7°), the right to a \"standard of living adequate for their physical, mental, spiritual, moral, and social development,\" recognizing parents as those primarily responsible for providing the living conditions necessary for their development and the State's duty to adopt \"appropriate measures to assist parents and other persons responsible for the child to give effect to this right\" (article 27), and in the case of a mentally or physically disabled child, the right to \"enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance, and facilitate the child's active participation in the community,\" in addition to \"receiving special care\" (article 23). On the other hand, la Declaración Universal de Derechos Humanos of December 10, 1948, specifies in its article 16, paragraph 3°, that \"The family is the natural and fundamental group unit of society and is entitled to protection by society and the State\" (in identical sense, article 23, paragraph 1°, of the International Covenant on Civil and Political Rights of December 19, 1966). For its part, article 25, paragraph 2°, of the aforementioned Declaration indicates that \"Motherhood and childhood are entitled to special care and assistance...\" and, finally, article 24, paragraph 1°, establishes that *\"Every child has the right, without any discrimination whatsoever... to such measures of protection as are required by his status as a minor, on the part of his family, society and the State\"*. From the norms of the international Human Rights instruments transcribed, it results, in all lights, that States have as fundamental duties the protection of the best interests of the child. Human or fundamental rights and the correlative obligations of public powers have also been developed at the infra-constitutional level; we thus have the Código de la Niñez y de la Adolescencia in general and la Ley de Igualdad de Oportunidades para las Personas con Discapacidad, when it also involves a child with special needs. Thus, the Código de la Niñez y de la Adolescencia (Ley No. 7739) points out that the interpretative north of any public or private action must be the best interests of the child (article 5°). Ordinal 12 of that normative body stipulates that the State must guarantee the right to life \"with economic and social policies that ensure dignified conditions for gestation, birth, and integral development.\" Numeral 29 establishes the obligation of the father, mother, or person in charge to \"watch over the physical, intellectual, moral, spiritual, and social development of their children under eighteen years of age\" and to \"comply with the instructions and controls prescribed to watch over the health of minors under their care\" (article 45). For its part, in addition to all that has been said, when the child requires special needs due to their disability, understood as \"a physical, mental, or sensory deficiency, whether of a permanent or temporary nature, that limits the capacity to perform one or more essential activities of daily life, which may be caused or aggravated by the economic and social environment\" (article I of la Convención Americana para la Eliminación de todas las Formas de Discriminación contra las Personas con Discapacidad), the rights of disabled persons are also applicable, also recognized in international norms (la Convención Americana para la Eliminación de todas las Formas de Discriminación contra las Personas con Discapacidad ratified by la Asamblea Legislativa through Ley N° 7948) and with legal rank la Ley de Igualdad de Oportunidades para las Personas con Discapacidad N° 7600, published in La Gaceta of May 29, 1996. Thus, disabled persons must be guaranteed equality of opportunities, through the suppression of all socially determined obstacles, whether physical, economic, social, or psychological, that exclude or restrict their full participation in society; in this sense, Article 2 defines early stimulation when it says it is all that \"attention provided to the child between zero and seven years to maximize and develop their physical, intellectual, sensory, and affective possibilities, through systematic and sequenced programs covering all areas of human development…\" and Article 13 of the Ley General de Salud No. 5395, of October 30, 1973, when it recognizes the duty of parents and the State to watch over the health and development of children: \"Children have the right for their parents and the State to watch over their health and their social, physical, and psychological development. Therefore, they shall have the right to state health benefits from birth until the age of majority. Children presenting physical, sensory, intellectual, and emotional disabilities shall enjoy specialized services.\". In conclusion, after all that has been said, it is clear that children are assisted by a series of special rights and, correlatively, the State and the parents or guardians of the children are assisted by a series of obligations and duties towards them, even more so when it concerns the protection of their right to life and health.\n\n**IV.- On the specific case.-** Regarding the practice of examinations, treatments, or surgical interventions on persons, this Chamber has held that the State must ensure that they are provided within a reasonable time, without denial, as the right to health is involved. Which, coupled with what was established in the previous considering on the best interests of the child, leads this Chamber to conclude that in this case, a violation of the protected minor's right to health has occurred. Indeed, from the report rendered by the representative of the respondent authority – which are taken as given under oath with the consequences, even criminal, provided in Article 44 of the Ley that governs this Jurisdiction – it is proven that the protected minor does indeed have a kidney disease requiring surgical intervention, and that despite this, such intervention was only scheduled for June 2008, that is, TEN MONTHS later. In this regard, the respondent authorities indicate that such intervention is not urgent and that there are similar cases waiting. For this Constitutional Tribunal, those arguments are not admissible, since the minor, barely two and a half years old, has to wait to be treated a number of months that represent almost half of her years of life. And although, after the filing of this recourse, the date was moved up to March 25, 2008 – and not to June 2008 as originally assigned – such a timeframe is equally unreasonable, not only because of the very young age of the minor, but because the best interests of the child make it disproportionate for her to have to wait so long to undergo surgical intervention, especially when it concerns a state institution whose vocation is the safeguarding of children's right to health. Furthermore, while the months of waiting pass, the minor's quality of life, having to be on an alternative treatment that does not resolve her condition, is diminished. Thus, given that the timeframe to perform the surgical intervention on the protected minor is disproportionate – even with the advancement of the date – the recourse must be granted, and the immediate scheduling of the surgical intervention ordered. **Magistrate Vargas dissents and dismisses the recourse.**\n\n**Por tanto:**\n\nThe recourse is declared WITH MERIT, and consequently, RODOLFO HERNANDEZ GOMEZ, in his capacity as General Director of the Hospital Nacional de Niños, or whoever holds this position in his place, is ordered to immediately issue the order to proceed with the surgical intervention that the protected minor requires, as determined by her attending physician, under their entire professional responsibility and with the proper medical supervision. The foregoing under the warning that he could incur the crime typified in Article 71 of the Ley de la Jurisdicción Constitucional, which provides that imprisonment of three months to two years, or a fine of twenty to sixty days, shall be imposed on whoever receives an order that must be complied with or enforced, issued in an amparo recourse, and fails to comply with it or fails to enforce it, provided the crime is not more severely punished. La Caja Costarricense de Seguro Social is condemned to pay the costs, damages, and losses caused by the facts serving as the basis for this declaration, which shall be liquidated in the execution of the sentence of the contentious-administrative proceeding. Notify personally RODOLFO HERNANDEZ GOMEZ, in his capacity as General Director of the Hospital Nacional de Niños, or whoever holds this position in his place. Notify all parties.\n\nLuis Fernando Solano C.\n\nPresident\n\nAna Virginia Calzada M. Adrián Vargas B.\n\nGilbert Armijo S. Ernesto Jinesta L.\n\nTeresita Rodríguez A. Horacio González Q.\n\n**Dissenting vote of Magistrate Vargas Benavides.**\n\nI depart from the majority criterion and dismiss the recourse filed. In matters regarding health services, such as the practice of examinations, consultations, treatments, or surgical interventions, la Sala has held that the State must ensure that they are granted without denial to the insured, as the right to health is involved. However, this Tribunal has also been clear in affirming that it is not for it to determine how much time is just from a medical standpoint to care for sick persons, as this is the exclusive competence of the attending physician, who issues the respective criteria regarding these aspects, which must be respected by la Caja Costarricense de Seguro Social, as constitutional jurisprudence has held. In the specific case, I consider that there is no violation whatsoever of the protected party's rights, since the fact that she was placed on the surgery waiting list is due to the treatment she currently receives greatly reducing the effects that the condition she suffers has on her health, as indicated by her attending physician in their report. For the foregoing, I consider it inappropriate for la Sala to order the respondents to perform surgery on the minor, as by doing so, it allows the interested party to skip the waiting list through the mere filing of an amparo recourse, thus violating the right to health of the persons who are ahead of the protected party on the appointment list and who suffer exactly the same condition as the tutelary, as stated by the respondents. On the other hand, from the evidence provided in the record and from the reports rendered under oath by the respondents, it follows that the protected party has received the medical treatment she requires at the Hospital Nacional de Niños, a reason for which I consider that the interested party has not been denied access to the health services provided by la Caja Costarricense de Seguro Social. Thus, for the reasons stated above, I believe the recourse should be dismissed.\n\nAdrián Vargas B."
}