Derecho a la libre elección del sistema de protección de salud en la Constitución Política de la República y libertad contractual Corte Suprema, 8 de octubre de 2018, ROL 5293- 2018

Abstract

It is resolved that the right to free election of the health protection system (article 19, number 9, final paragraph of the Chilean Political Constitution) limits the autonomy of will and the freedom of contracting Isapres. The Supreme Court uses a socializing criterion of the right to health in terms of its role as a fundamental right. In addition, the Supreme Court moves away from interpretation as a simple individual right, that when colliding with the right to freedom of contract of the Isapres did not ensure its preeminence over it. The Supreme Court, following the jurisprudential line dealt with by the Constitutional Court since 2008, clearly limits the freedom of contracting the Isapres in the protection of the freedom of choice of the public or private system. In the facts, a mother wins an appeal for protection against the Isapre, through which she alleged that her right to free choice was affected by the health protection system when she was denied affiliation in three Isapres, due to a preexisting illness of her daughter.