Tutela in health

What it is

The tutela action (Constitution, art. 86) lets anyone ask a judge for immediate protection of their fundamental rights when an authority, or in certain cases a private party, violates or threatens them. The judge decides within ten days at most and the ruling must be obeyed at once. Since Ruling T-760 of 2008 and Statutory Law 1751 of 2015, health is an autonomous fundamental right, so tutela applies directly to protect it. It is the mechanism patients use most against refused or delayed services.

Key facts

• Constitution, art. 86: a preferential, summary procedure; the ruling is obeyed at once, may be challenged and goes to the Constitutional Court for possible review; at most ten days between the claim and the decision.
• Art. 86: it only applies when there is no other judicial remedy, except as a temporary mechanism to avoid irreparable harm.
• Decree 2591 of 1991, art. 10: anyone may file it, personally or through a representative; art. 14: no special formalities are required.
• Decree 2591, art. 7: the judge may order interim measures from the moment of filing if protecting the right is urgent.
• Decree 2591, art. 27: if the ruling is not obeyed within 48 hours, the judge acts before the superior of the person responsible; art. 31: the ruling may be challenged within three days of notice.
• Decree 2591, art. 52: disobeying the judge's order is contempt, punishable by arrest and a fine.
• Ruling T-760 of 2008: recognised health as a fundamental right and gave general orders to the system, among them to clarify and update the benefits plan and unify it across schemes.

Step by step

1. Identify the right violated (health, a dignified life, integrity) and who violates it: insurer, provider or authority.
2. Gather evidence: the treating doctor's order, the refusal or the lack of answer, and the medical record.
3. File the tutela with a judge where the facts occurred; no lawyer or special form is needed.
4. Ask for an interim measure if there is an immediate risk to life or integrity.
5. The judge decides within ten days at most; the ruling is obeyed at once.
6. If it is not obeyed, file a contempt motion.

In clinical practice

• The treating doctor's written, justified order is the key evidence: describe the clinical need, not only the name of the service.
• The doctor does not file the tutela for the patient, but must provide the clinical information and documents the patient asks for.
• Tutela does not replace ethics: a service that is not indicated does not become indicated because a judge orders it; the doctor explains their judgement in writing.

Legal framework in Colombia

• Political Constitution of 1991, art. 86; Decree 2591 of 1991 (regulating tutela). Some articles of Decree 2591 were declared unconstitutional (for example, the time limit of arts. 11 and 12).
• Statutory Law 1751 of 2015, art. 14, paragraph 2, and art. 15, paragraph 2: the law applies without prejudice to tutela; Ruling C-313 of 2014 made its art. 1 conditional on not weakening tutela.
• Ruling T-760 of 2008 (Constitutional Court, 31 July 2008): unified case law on the right to health and ordered regulatory failures in the system to be corrected.

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Educational content on ethics and health law; not legal advice. Laws and case law change: each page links the official text and says when it was last checked. For a real case, read the text in force and ask a lawyer or the medical ethics tribunal.

Sources: Constitución Política de Colombia de 1991, art. 86 (Función Pública, Gestor Normativo, 1991); Decreto 2591 de 1991, por el cual se reglamenta la acción de tutela (Función Pública, Gestor Normativo, 1991); Sentencia T-760 de 2008 (Corte Constitucional de Colombia, 2008).

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