Recognizing the Public Right to Healthcare: The Approach of Brazilian Courts

Abstract

This paper considers aspects of the judicialization of health care policy in Brazil. It discusses the issue in the context of the separation of the powers of government, judicial protection of the public right to healthcare, the so-called “technical administrative discretionary prerogatives,” and finally, the need for a budget to provide for the efficacy of court decisions. To further the analysis of Brazil’s treatment of the judicialization of politics this paper also compares Brazil’s experience with the experience of other countries witnessing the same phenomenon.

The quality of research on judicialization and its influence on public policies on access to medicines in Brazil: a systematic review

“…Therefore, the patients' rights could be assured without disregard the scientific evidence. Based on international examples, Brazilian courts could be encouraged to create permanent scientific advisory committees, with health experts that would rise scientific evidence to support their judicial decisions 8,62,74 . When such committees exist, health professionals generally do not receive feedback on clinical outcomes after judges' decisions.…”

“…Although the National Council of Justice suggests the adoption of some measures, including the creation of scientific support committees with doctors and pharmacists, most Brazilian states have not yet complied with this recommendation 39,74 . In addition, there is still little evidence that magistrates effectively demonstrate adherence to such regulatory attempts.…”

“…We do not know if the legal system has considered the technical recommendations to incorporate new technologies already available in the Brazilian Unified Health System. This scientific support could help judges, prosecutors, and other representatives of the judiciary to assess clinical and budgetary issues raised by the parties in health-related actions, ensuring greater cost-effectiveness in cases of judicialization of medicines 74,76 . However, the lack of these committees influences the management of pharmaceutical services since several judicialized drugs of the included studies were added to the official essential drug lists to expand access, but with a considerable increase in health budgets.…”

Public sector implementation strategies to approach the judicialization of health care: a systematic review protocol

“…The judicialization of health care, in part, reflects a social and participatory evolution of the citizen [9], but it can be a barrier to the successful realization of the collective right to health care [10]. It is a multifaceted phenomenon that is growing more intensely in Latin America and the Caribbean [8,11]. In these regions, lawsuits are filed against a health authority due to gaps in health policy and/or failures in its implementation [11], with a very high probability, almost certainty, which the ruling will favor the claimant [12].…”

Strategies Implemented by Public Institutions to Approach the Judicialization of Health Care in Brazil: A Systematic Scoping Review

“…Considering the objectives of this review, the following concepts were employed: Judicialization of health care: A multifaceted phenomenon, present in Latin America and the Caribbean in a similar way, where a lawsuit is filed against an institution of the public health care sector due to gaps in health policy or health care delivery failures (Perlingeiro, 2014). The purpose of the lawsuit is to guarantee the person's, individually or collectively, constitutional right to health care.…”