Sanction to the Chilean public health system for not providing basic, necessary and

urgent services to the elderly. Case Poblete Vilches and others Vs Chile (2018).
Inter-American Court of Human Rights.

Summary: The critical review analyzes the resolution issued by the Inter-American Court of
Human Rights in the case Poblete Vilches et al. v. Chile (2018). Mr. Poblete Vilches, a senior
citizen, who died in February 2001 due to a septic shock and bilateral bronchopneumonia,
was treated in a public hospital “Sótero del Río”, which, according to the ruling, incurs in
denial of assistance. The ruling examined condemns the State of Chile. The study is
descriptive, analytical and evaluative of the argumentative praxis of the American Convention
on Human Rights, carried out by the Inter-American Court of Human Rights. The
interpretative argumentation of the ruling is sought. It is concluded that the sentence explicitly
elaborates criteria in relation to informed consent as a derivation of the right to health and
implicitly, from a gerontological perspective, a manifestation of structural abuse towards the
elderly person and their supportive environment. The gerontological gaze brings challenges
for its development. The ruling is unique in the Inter-American Human Rights System; the
doctrine and the Court itself have recognized this.

Keywords: elderly person, right to health, informed consent, structural abuse, Inter-American
Court of human rights.
Abstract:
Keyword:

I. Introduction
This critical review constitutes a descriptive, analytical and evaluative study of the
argumentative praxis of the American Convention on Human Rights -CADH- (1), carried out
by the Inter-American Court of Human Rights - IACHR-, in the judgment emanating from the
Poblete Vilches case and others v. Chile March 8, 2018 (2) in which issues related to the
human rights of the elderly are received in the context of medical and social care. The Inter-
American Court delivered about the right to life and personal integrity and the right to health
for the elderly, based on the recognition of Economic, Social, Cultural, and Environmental
Rights -ESCER-, invoking for the first time the Inter-American Convention on Protection of
Human Rights of the Elderly.

The Inter-American Court is an autonomous judicial institution whose objective is the

application and interpretation of the ACHR, being its final and authentic interpreter (Article
33 letter b).

The decision of the Inter-American Court must be justified, final and unappealable. The States
Parties are obliged to assume the ratio decidendi of the judgments of the Inter-American
Court, since it constitutes a binding judicial body (Articles 67 to 69 of the ACHR) (1).

In the description of the facts, there are two admissions to the Public Hospital Sótero del Río.
Regarding the first, Mr. Poblete Vilches (hereinafter PV) was admitted to the hospital on
January 17, 2001 due to severe respiratory failure. On January 22, 2001, he was admitted to
the surgical intensive care unit. A surgery was performed while he was unconscious, without
the prior consent of his relatives. On February 2, 2001, PV was discharged, without further
indications (2).
On February 5, 2001, PV once more was admitted to the same hospital, where he remained in
the intermediate care unit, despite the clinical record stipulated his admission to the intensive
care room. A mechanical respirator was required, but this assistance was not provided. PV
died on February 7, 2001 (76 years) due to a septic shock and bilateral bronchopneumonia (2).
From the clinical point of view, there is compliance with the lex artis.
The objective of the critical review is to describe and analyze the arguments used by the Inter-
American Court of Human Rights in the interpretation of the Convention in the case in
question and assess it with its greater / lesser degree of relevance from a gerontological
perspective on the challenges, situating itself in the Chilean reality.

II. Material and method

The critical review is descriptive and analyzes the main dimensions delimited by the
interpretative argumentation in the praxis of the Inter-American Court of Human Rights
applicable to the promotion and protection of the human rights of the elderly in the health
field, identifying essential components in the light of gerontology. The ruling of the Inter-
American Court of Human Rights in the case of “Poblete Vilches and others v. Chile” March
8, 2018 is used as predominant material.
The arguments that are related to current law (attributions, "the protected") are selected and
not so to the guarantees (which constitute the means to make the rights effective, "the
protector").

The founding premises of this research are two. The first, that the ACHR fulfills its normative
function if the Inter-American Court of Human Rights - the highest legal body of the Inter-
American Human Rights System, justifiably applies it. And the second, that the Inter-
American Court of Human Rights, when explaining the reason with which it decides the
struggle, legitimizes its own existence.

It is assumed that the Convention, together with establishing fundamental rights, establishes
and limits the jurisdiction of the Inter-American Court of Human Rights. And the latter, in the
realization of its competence, it interprets the Convention with interpretative arguments
proper to the law, which can be identified and examined (3). In this regard, this study
proposes the need to evaluate the greater or lesser rationality of the judgments (legal
discourse) with certain objective parameters (4).

A new normative theory is not proposed to justify the sentences; it seeks to raise awareness of
the complexity and evolution of the legal discourse present in the justifications.
It is considered that the ACHR expresses fundamental rights through open clauses, constitutes
the fundamental legal norm of the Inter-American Human Rights System, is contained in a
document and is the source of legitimacy of the Inter-American Court of Human Rights.

Interpretive argumentation is understood to be one that aims to justify or reject the validity of
assigning a meaning to a precept of the Convention. The Inter-American Court of Human
Rights, which is the main body in charge of maintaining normative supremacy, carries out this
task; thus, it must adhere to the elements present in the Convention.
III. Development of the topic
In this ruling, the Inter-American Court of Human Rights develops two substantive rights.
The first of them is the right to life and personal integrity of the elderly person and the second
can be sub classified into the right to health of the elderly person (2.b) and the rights to
informed consent of the elder holder and their relatives in the health field (2.b).

It should be noted that the Inter-American Court of Human Rights declares to rule "...for the
first time regarding the right to health autonomously as an integral part of Economic, Social,
Cultural and Environmental Rights -ESCER-..." (Paragraph 105) (2). It also declares to
pronounce "for the first time specifically on the rights of the elderly in matters of health"
(paragraph 125) (2).

III.1. Right to life and personal integrity of the elderly person. The right to life constitutes
a “prerequisite for the enjoyment of all other rights” (paragraph 145) (2), therefore, the Inter-
American Court of Human Rights opts for the systematic argument to substantiate, without
justifying when citing ESCER and uses an argument of jurisprudential authority citing the
European Court of Human Rights, unrelated (5). It is limited to maintaining that the
international responsibility of the State for death in a medical context, occurs: “a) when by
acts or omissions the access to health in situations of medical emergency or essential medical
treatment is denied to a patient, despite being foreseeable the risk that such denial implies for
the life of the patient; b) serious medical negligence is proven; c) existence of a causal link,
between the accredited act and the damage suffered by the patient. If the attribution of
responsibility comes from an omission, requires verifying the probability that the omitted
conduct had interrupted the causal process that led to the harmful result. Said verifications
must take into consideration the possible situation of special vulnerability of the affected
person, and in view of this the measures adopted to guarantee their situation” (paragraphs 147
and 148) (2).

On the other hand, the Inter-American Court of Human Rights considers with a grammatical
argument, citing article 5.1 of the ACHR that “the protection of the right to personal integrity
supposes the regulation of health services in the domestic sphere, as well as the
implementation of a series of mechanisms aimed to safeguard the effectiveness of such
regulation... states must establish an adequate regulatory framework that regulates the
provision of health services, establishing quality standards for public and private
institutions...” (Paragraph 152) (2). In this case, the repeated omissions “... resulted in PV
experiencing various sufferings for at least five days as a result of neglect of their particular
health conditions” (paragraph 153) (2).

III.2.a. Right to health of the elderly. The Inter-American Court of Human Rights begins its
argument with a justification of the jurisprudential authority of the same institution, alluding
to the preceding recognition (6) in relation to the autonomy of the ESCER. It highlights “...
the interdependence between civil and political rights and economic, social, cultural and
environmental rights, since they must be understood integrally and in a globalized way as
human rights, without hierarchy among themselves and enforceable in all cases before those
authorities that are competent to do so” (paragraph 100) (2). The Inter-American Court of
Human Rights continues using the subjective or genetic argument, when it refers directly to
the opinion of Chile in the drafting of the ESCER in the IACHR (Article 26 and 41), who
maintains: “In any case, a provision that establishes a certain legal obligation it should be
stated regarding the economic, social and cultural rights (as far as the nature of these rights
allows) in its compliance and application” (Document 7, dated September 26, 1969, paragraph
14). In this same point, it ends with a comment of a teleological nature, referring to the
international and national corpus iuris (a circumstance it does not argue).

The Inter-American Court of Human Rights continues with a systematic argument,

determining the content and scope of Article 26 of the IACHR in which two types of
obligations are distinguished: progressive and immediate. The progressive implementation
obligations consist of "...that the States parties have a concrete and constant obligation to
advance as expeditiously and efficiently as possible towards the full effectiveness of the
ESCER" and it establishes the non-regressivity in the realization of the rights achieved.
(Paragraph 104). For their part, the immediate obligations "consist of adopting effective
measures in order to guarantee the access without discrimination to the benefits recognized
for each right" (paragraph 104) (2).

Still, the Inter-American Court of Human Rights insists with systematic argumentation when
it cites, without explaining their correlation, provisions of the OAS Charter (paragraph 106),
the American Declaration (paragraphs 107 to 110), the domestic legislation of Chile
(paragraphs 111 to 113), the International Corpus Juris on the right to health (paragraphs 114-
117) (2).

In relation to the medical emergency (paragraphs 118-124) (2), the Court, in an effort to
interpret with a systematic element, refers to a pronouncement of the ESCER Committee, GC
14 (7). Thus, for medical provision, States should comply with minimum standards of quality,
accessibility, availability, and acceptability. Quality is understood as the "adequate and
necessary infrastructure to satisfy basic and urgent needs" (including life support tools and
qualified human resources) (paragraph 121, a). Accessibility is understood in its "overlapping
dimensions of non-discrimination, physical accessibility, economic accessibility and access to
information "(paragraph 121, b). Availability implies sufficient material and human resources
and the coordination of establishments and networks (paragraph 121, c). Acceptability refers
to the fact that health services “must respect medical ethics and culturally appropriate
criteria... include a gender perspective... as well as the conditions of the patient's life cycle.
The patient must be informed about the diagnosis and treatment and the patient’s will must be
respected” (paragraph 121, d) (2).
On the other hand, applying a teleological argument, the Inter-American Court of Human
Rights considers that “older persons have the right to enhanced protection and, therefore,
requires the adoption of differentiated measures”. Regarding the right to health of the elderly
person, “old age must be understood and recognized in a dignified manner and therefore the
treatment of it” (Paragraph 127) (2). Again, with a systematic argument, General Comment 6
of the UN Committee on ESCER (8) and General Comment No. 14 of the UN Committee on
ESCER (9) are cited without justification, which guide the States to maintain measures of
prevention and rehabilitation that preserve the functionality of the elderly, reducing costs in
health and social services (paragraph 128) (2). In this same sense, they appear as relevant and
undeveloped concepts in the failure such as functionality, autonomy, care, chronic patients
and terminal phase.
III.2.b. Right to informed consent of the elderly person and their family members. The
Inter-American Court of Human Rights, with a systematic argument, considers regarding the
elderly in a health context “the existence of various factors such as physical limitations,
mobility, economic condition or severity of the disease and possibilities of recovery... such
vulnerability is increased due to the imbalance of power that exists in the doctor-patient
relationship... it is essential that the patient be guaranteed, in a clear and accessible way, the
necessary information and understanding of their diagnosis or particular situation, as well as
the measures or treatments to face such situation (Paragraph 131) (10) (11). In this sense, it
points out that “informed consent is part of the element of the accessibility of information and
therefore of the right to health (article 26)”, establishing the right to information in article 13
of the ACHR as instrumental (that is to say, guarantees and respects the right to health)
(Paragraph 160) (2).

Informed consent derives from the application of article 13 ACHR, and consists of “a prior
decision to accept or submit to a medical act in the broad sense, freely obtained, that is,
without threats or coercion, induction or improper inducements, delivered subsequently
obtaining adequate, complete, reliable, understandable and accessible information, provided
that this information has actually been understood, which will allow the full consent of the
individual”; it must be granted by whoever will receive a procedure (Paragraph 161) (2). The
Inter-American Court of Human Rights considers that “health providers must inform the
patient, at least, about: i) the evaluation of the diagnosis; ii) the objective, method, probable
duration, benefits and expected risks of the proposed treatment; iii) the possible unfavorable
effects of the proposed treatment; iv) treatment alternatives, including those less intrusive, and
the possible pain or discomfort, risks, benefits and side effects of the proposed alternative
treatment; v) the consequences of the treatments, and vi) what is estimated to occur before,
during and after the treatment” (paragraph 162, 164, 165) (2). On the other hand “Consent by
representation or substitution is updated when it has been verified that the patient, due to their
special condition, is not in the capacity to make a decision in relation to their health, for which
this power is granted to their representative, authority , person, family member or institution
designated by law.” (Paragraph 166) (2).

For these purposes, it ends with a teleological element, dignity (Article 11 ACHR) is linked to
autonomy “the possibility of every human being to self-determine and freely choose the
options and circumstances that give meaning to their existence, according to their own options
and convictions... For its part, the second paragraph [refers to Article 11 ACHR] establishes
the inviolability of private life and family...” And it would be related to the protection of the
family (Article 17 ACHR), which plays a central role in the existence of a person and in
society in general (paragraph 168) (2).

IV. Conclusions from the interpretative argumentation

In recent decades, profound transformations have been seen in International Public Law of
human rights, motivated by international ordre public considerations; dealing with common
values, superior to the State and to all forms of political organization, which are configured as
fundamental and irreducible. At the beginning of the 21st century, the advent of the new
primacy of the reason of humanity over the reason of State is revealed, which inspires the
historical process of humanization of International Law (12) (13). An explicit ethicity is
observed; human rights mean the recognition of the moral content of domestic and
international legal norms (14). This process is reflected in the ruling in question, regardless of
whether a constant need to improve the interpretive legal technique exists. The establishment
of a regime of international guarantee of human rights does not occur automatically, since it
implies the acceptance of the States to a certain degree of restriction of their competences in
the exercise of the power that it is exercised over the persons subject to their jurisdiction and
on the other hand, the acceptance of competence of the international community bodies in a
very sensitive area (15).

The greatest interpretive effort of the ruling is based on objective elements (grammatical,
systematic, and jurisprudential authority), as previously stated by the Inter-American Court of
Human Rights as argumentation preferences (16). The systematic element is applied on five
occasions, observing a tendency towards the absence of justification in the normative
correlation, not in the determination and meaning or scope of the aforementioned norms. The
jurisprudential and theological elements are used twice each one. Regarding the systematic
element, it is striking that the Inter-American Human Rights System considers that the
arguments used by the Inter-American Court of Human Rights to interpret the ACHR must be
legal, within the framework of a previously given right. Therefore, the Inter-American Court
of Human Rights does not act within its jurisdiction if it uses extra-systemic arguments, such
as the case of the summons without justification from the European Court of Human Rights
regarding the right to life and physical integrity of the elderly person. This bad practice does
not comply with the international standards of the system, nor with the cultural realities of the
continent. Regarding the right to health, on the other hand, there is a previous work of the
Inter-American Court of Human Rights in preparing the aforementioned precedents. On the
other hand, a subjective genetic argument is used in relation to Chile's position regarding the
legal applicability of the right to health, during the drafting time of the ACHR.
It should be noted that with respect to the right to health, the Inter-American Court of Human
Rights has used the four elements of legal interpretation typical of the system of Roman-based
law.

Finally, the ruling resolves that the Chilean State is responsible for the violation of the right to
health, for the violation of the right to life to the detriment of PV, for the violation of the right
to personal integrity, to the detriment of PV, for the violation of the right to obtain informed
consent and access to information on health matters to the detriment of PV and his relatives
and, due to the violation of personal integrity, to the detriment of his relatives (Resolution
points IX, pp. 79) (2).

V. Challenges from a gerontological perspective

International public order and the Inter-American Court of Human Rights in particular, have
made efforts to advance the recognition of the human rights of elderly people. The Inter-
American Court of Human Rights declares this case as novel and for this reason; a greater
specialization in old-age rights can be reasonably expected over time, where the biographical
identity is accepted as an ethical and gerontological nucleus of reflection (17).
Among the many issues relevant to gerontology, the Inter-American Court of Human Rights
assumes the one related to overcoming social stereotypes and stigmas towards elderly people
in the social and healthcare sphere. It is clear that a cultural and social structure change is
required and a new way of relating to and with elderly people (18). It is necessary to specify a
paradigm change, which allows overcoming tendencies that consider the senescence of a
weak subject and beneficiary of assistance benefits, to take the step to consider the old person
as a subject of law that can demand from the State (19). In this sense, the age of an elderly
person is not an indicator of medical diagnosis and prognosis, unlike other areas such as
functionality (20) to which the information on the ruling does not refer.

The Inter-American Convention on protecting the Human Rights of Older Persons (21), refers
to prejudices or stereotypes stating that the States Parties: “will create and strengthen
mechanisms of participation and social inclusion of the elderly in an environment of equality
that allows to eradicate prejudices and stereotypes that hinder the full enjoyment of these
rights” (Article 8, letter a). Now, it is relevant to consider that this case reveals an example of
structural abuse, where social stereotypes lie as the basis of abuse and that directly affect the
right to life and integrity, which, as the Inter-American Court of Human Rights points out,
constitutes the basis of the rest rights. To clarify what has been said, the National Service for
the Elderly of Chile has defined structural abuse as “that which occurs from and in the
structures of society through legal, social, cultural, economic norms that act as a background
for all other forms of existing abuse” (22).

In relation to the right to health in general, the ruling pronounced in March 2018 refers to
events that occurred in Chile during 2001, when the international and national normative
standard was lower than the current one in health matters (23) and in rights of old age (24). In
today's reality, a similar case should be resolved with a more demanding standard in the
matter. At the date of the events, the World Health Organization had not coined the term
"active aging" which is based on the pillars of health, safety and participation (25) and there
was no awareness of the autonomy of the elderly in sanitary matters. On the other hand, also
the later International Plan on Aging of Madrid (26), favors seeing the increase in life
expectancy as an opportunity; the elderly are encouraged to have security, explicitly referring
to health benefits and care; the right of participation and with it, the autonomy and informed
consent are recognized with emphasis. All of this generates instruments that favor cultural
changes at the level of sociocultural and legal -regional and local- standards, such as
guidelines on good clinical practices in geriatrics that implement integrated care focused on
the elderly (27) and the dictation of the Inter-American Convention on Protecting the Human
Rights of Older Persons (21), among others. At the national level, the Universal Access Plan
to Explicit Guarantees in Health in force since 2005, (28) promotes the enactment of Law
20,584 on rights and duties that people have in relation to actions related to their health care
(23), which changes the paradigm of biomedical paternalist care to a model of autonomy.
In this sense, some points about quality healthcare for the elderly are considered key, without
limitation: incorporating throughout health care a comprehensive view of the individual that
considers social, biographical, functional, affective and cognitive aspects, as well as
biomedical; establish a continuous and integrated care between devices, adapted to the needs
of the elderly that enhances their functionality and prevents iatrogenesis regardless of the
level of care in which they are, paying special attention to the needs and prevention of risks
associated with hospitalization of the older people, particularly the frail; incorporate the
opinion of the elderly person in decision-making, and for this consider the evaluation of
competence, as well as the advance planning of health decisions, the statement of values and
the decision-making that considers the best interest of the older person as accompanying
items. Encourage, through tools and instances, good communication between the different
actors, which affects not only the user-family-care team relationship, but also health
transitions. A key example among these is the preparation for medical discharge (in relation to
safety, fewer readmissions, greater functionality). Regarding the communication and delivery
of information, special attention should be paid to the level of understanding and knowledge
in health of those involved and to adapt the content and communication strategies so that
people can actively participate in their health care. The aforementioned requires a
commitment from the states, both in the training of human resources at the undergraduate and
postgraduate level, as well as in the continuous review and adjustment of existing practices
and resources, strategies that are key to non-repetition (27, 29).

The Court rules regarding the right to life, in relation to the denial of emergency medical
treatment by medical personnel. Decides that Chile did not adopt the necessary, basic and
urgent measures that could reasonably have been adopted to guarantee her right to life. The
state does not justify the fact that it denied basic emergency services. The Inter-American
Court of Human Rights considers the probability that assistance would have at least prolonged
the life of PV, concluding that the omission of basic health benefits has affected his right to
life (Article 4 of the Convention) (paragraphs 145 and 151) (2). From gerontology, it should
be specified that it is appropriate to discuss those decisions that are clinically feasible.
Healthcare teams must provide technically viable and justified alternatives given the clinical
condition of the elderly patient. Still, the decision of the Inter-American Court of Human
Rights does not constitute a favor towards therapeutic obstinacy, which would ultimately
imply unnecessary suffering to the patient and, on the other hand, a misuse of health
resources. In this sense, it is the duty of the healthcare team to consider death as part of life
and, consequently, the support and accompaniment of the relatives after the patient's death is
relevant. With this orientation, the Republic of Chile at the time of depositing the instrument
of ratification of the Inter-American Convention on protecting the Human Rights of Older
Persons declares “that the approach of life course will be understood as the continuum of the
person's life, from the beginning of its existence to the last stage of his life, which,
conditioned by various factors, such as family, social, economic, environmental and / or
cultural, configure his vital situation, being the State in charge of developing this approach in
its public policies, plans and programs, with special emphasis on old age”(30).
Regarding informed consent, it is known that it is part of the growing recognition of the
autonomy of the elderly. This implies considering it as a principle that allows existential and
practical choices that arise from personal identity, life history and environmental conditions
(31). In general, the term "autonomy of the will" is understood as the ability of the legal
subjects to establish rules of conduct for themselves and in their relationships with others
within the limits established by law (32).

The Inter-American Convention on Protecting the Human Rights of Older Persons maintains
that independence and autonomy constitute general principles for the interpretation of the
instrument (Article 7) (21). An important dimension of the autonomy of people occurs in the
health field. It is understood that decision-making capacity is a central element and together
with responsibility, they constitute guiding principles of the relationship between the patient
or user and the healthcare team, avoiding verticalization and asymmetry of information. In
technical language, the Declaration of Bioethics and Human Rights defines these concepts as
the power to make decisions about one's own life, assuming responsibility for them and
respecting others. Regarding people who lack the capacity to exercise it, it indicates that
special measures will be taken to protect their rights and interests (33). The Declaration in
question sheds light by uniting the concept of autonomy with that of responsibility, because it
chooses to move away from a conception of freedom that absolutely exalts the individual,
which is adapted to the Latin American cultural reality. The obligation to "take special
measures" does not fall exclusively on the user of the health service, but also on other
subjects, since these special measures must protect "their rights and interests." On the other
hand, the autonomy of the subject is appreciated because it is essential for the integration of
decision-making processes, such as informed consent. Consent (agreement of wills) does not
relate to narcissist satisfaction and autonomy of the patient, but to the realization of their
possible therapeutic good (34). An opportunity to relieve informed consent in older people
may be to incorporate in their conceptualization some standards associated with good
practices in geriatrics, in relation to hospitalization (35).
With these considerations, the decision-making model based on support or assistance also
advances, developed by those who dedicate themselves to the study and / or policies on the
disability condition of people (36).

Naturally, the ruling of the Inter-American Court of Human Rights marks an important
milestone regarding the recognition of the rights of the elderly, especially in the sphere of life
and health. Likewise, it allows a better understanding of how relevant it is for the elderly
patient that their wishes are listened to and that there are guidelines to proceed, in those cases
in which the person is not able to express their wishes. The use of informed consent is not
irrelevant in subjects of law: older people. Since the tragic events that happened to PV
together with his family, national and international legal instruments have taken a positive
course, that is, both domestic law and international law are moving towards the recognition of
the rights of the elderly, taking as a guide route the dignity of the human being.

VI. Conflict of Interest

The authors declare that they are not affected by any circumstance that constitutes a conflict
of interest, be it actual, potential or apparent.

VII. Bibliography
1. General Assembly of the OAS, Resolution 448, Inter-American Commission Statute
on Human Rights, General Assembly, ninth session, La Paz, Bolivia 1979
2. Inter-American Court of Human Rights (2018). Poblete Vilches et al. v. Chile, 8
March 2018.
3. American Convention on Human Rights, San José, Costa Rica 1969. See article 33,
and Chapter VIII, articles 52 to 73.
4. Cf. J. García, “Rhetoric, “Argumentation and Law”, in Isegoria 21 (1999), pp.131-
147. The author proposes the “Theory of Arguments in Legal discourse”, according to
which there are criteria of justice that guide the work of the judge. It is a response to
the debate between the positions that consider that the Law lacks content of value,
since it is mere subjectivity or manifestation of interests and the material theory of
values. García raises the historical evolution of the Theories of Interpretation of Law,
among them the legal formalism, the Free Law School and proposes admissible
interpretative arguments in the legal argumentation with its underlying elements”.
5. European Court of Human Rights. Lazar v. Romania, Application No. 32146/05, third
section, judgment of May 16, 2010; Z v. Poland, Application No. 46132/08 (fourth
section) judgment of November 13, 2012; Calvelli and Ciglio v. Italy, Application No.
 32967/96, judgment of January 17, 2002; Byrzykowski v. Poland, Application No.
11562/05 (Fourth Section), judgment of June 27, 2006; Silih v. Slovenia, Application
No. 463/014, judgment of April 9, 2009.
6. Inter-American Court of Human Rights. Lagos del Campo v. Peru. Preliminary
objections, merits, reparations and costs, judgment of August 31, 2017.
7. Committee on Economic, Social and Cultural Rights (ESCR Committee), General
Comment (GC) Cf. United Nations. DESC Committee, GC
No. 14: “The right to the enjoyment of the highest Attainable Standard of health”,
E/C12/ 2000/4, August 11, 2000.
8. United Nations ESCR Committee, GC-6: “The economic, social and cultural rights of
elderly people”, E/1996/22, CERS, General Comment 6, December 8, 2015.
9. United Nations ESCR Committee, GC-14: “The right to the highest Attainable
Standard of health”, E/C.12/2000/4, Covenant on Economic, Social and Cultural
Rights (CESCR), General Comment 14, August 11, 2000.
10. In this sense, the concept of informed consent has been widely developed in German
law: see Damm, Reinhard; 2015 Einwilligung - und Entscheidungs faehigkeit in der
Entwicklung von Medizin und Medizinrecht en MedR, pp. 775-785; Laufs. A/
Katszenmeier; Chr/Lipp; V2015 Artzrecht. 7 edition p 107; Spickhoff, Andreas 2014
Medizinrecht 2 edition, paf.n 27-31; Coester-Waltjen, Dagmar 2012 Reichweite und
Grenzen der Patienteautonomie von Jungen und Alten- Ein Vergleich in MedR pp.
553-560;
11. Interesting are emblematic cases that refer to the informed consent of both the patient
and the family members, see as an example: Petrova v. Latvia, 06/24/2014 where it is
condemned for lack of consent of the relatives in the extraction of organs from the
passed away; Juhnke v. Turkey, 05/13/2008 refers to the lack of consent.
12. A. Cancado Trindade, “The Expansion of the material content of Jus Cogens”, in
XXXIV Course on International Law organized by the Inter-American Juridical
Committee 2007, Washington D.C., General Secretariat of the OAS, 2008, pp.1-15.
13. Cf. A. Cancado Trindade, A Humanizacao do Direito Internacional, Editorial Del
Rey, Belo Horizonte 2006, pp. 53.
14. F. D'Agostino, Diritto e Giustizia, per una introduzione allo studio del diritto, San
Paolo, Milano 2000, pp. 26-30.
15. A. Arenas Massa, ”Interpretive Argument of the Inter-American Court of Human
Rights in three judgment of bioethical scope 2006-2012”. Doctoral Thesis, Università
degli Studi Tor Vergata, Rome, April 2015.
16. Inter-American Court of Human Rights, Advisory Opinion OC-03/83 of September 8,
1983 on restrictions on the death penalty, Article 4.2 and 4.4 ACHR. Paragraph 50.
17. Arenas Massa. Elderly, new perspectives for human development. Finis Terrae
Editions; Santiago, 2012.
18. C. Riveros, P. Rodríguez, R. Palomo, S. Alvear, M. Fernández, Ángela Arenas,
Structural abuse of the elderly in Chile and the need to formulate a multidimensional
index, UNIVERSUM • Vol. 32 • No. 2 • 2017 • University of Talca.
19. P. Ramos Vergara, A. Arenas Massa, Some conceptualizations about the dignity of the
elderly in biolaw. pers.bioét. 2015; 19 (1): 25-35. doi: 10.5294/pebi.2015.19.1.3
20. F. Guillen, J. Pérez, Syndromes and care in the geriatric patient, Masson, 2nd edition
2008, Spain. 587-599. Chapter 48 Iatrogenesis and Drug Use.
 21. Organization of American States (2015). Inter-American Convention on Protecting the
Human Rights of Older Persons.
22. National Service for the Elderly (2013). Abuse against the elderly. A glance from the
Chilean reality. Thematic booklet No. 3. SENAMA editions; Santiago, 2013.
23. Law No. 20,584 on Rights and duties that people have related to their health care.
24. M. I. Dabove, (2016). Human rights of the elderly in the new American Convention
and its bioethical implications. Latin American Journal of Bioethics, 16 (1), 38-59.
DOI: http://dx.doi.org/10.18359/rlbi.1440.
25. WHO (2002): Active Aging. Geneva.
26. Madrid 2002 cite.
27. M. Budinich, J. Sastre. Discharge planning, Las Condes Clinic Medical Journal.
January-February 2020 31 (1): 76-84
WHO 2015 World Report on Aging and Health available at:
http://apps.who.int/iris/bitstream/handle/10665/186466/9789240694873_eng.pdf?
sequence=1
28. Ministry of Health (2005). Plan for Universal Access to Explicit Guarantees in Health
29. Department of International Law, Organization of American States. Inter-American
Convention on protecting the Human Rights of Older Persons, Status of signatures and
ratifications, Chile August 15, 2017, available at:
http://www.oas.org/es/sla/ddi/tratados_multilateral_interamericanos_A-
70_derechos_humanos_personas_mayores_firmas.asp [19.09.2020]
30. A. Arenas, A. Slachevsky. (2017). ¿Sé y puedo? (Do I know? and Can I?) Decision-
making and informed consent in dementia disorders: diagnostic and legal dilemmas in
Chile. Medical Journey. Chile 2017; 145: 1312-1318.
31. Royal Academy of the Spanish Language (2017), word “autonomy”.
32. UNESCO (2006). Universal Declaration of Bioethics and Human Rights.
33. F. D'Agostino (1998): Bioethics. G. Giappichelli Editori, Torino.
34. W .Tadd, A, Hillman, S, Calnan, M, Calnan, A, Bayer, S, Read. Dignity in Practice:
An exploration of the care of older adults in acute NHS Trusts. NIHR Service
Delivery and Organization Program; 2011.
35. A. Palacios. (2008). The social model of disability: origins, characterization and
expression. International Convention on the Rights of Persons with Disabilities
CERMIGrupo editorial Cinca, Madrid 2008, pp. 469.

This article, including all quotations from cases and other Spanish-language material, has
been translate from Spanish to English by Gabriela Saavedra Alava.