Health technology assessment and judicial deference to priority-setting decisions in healthcare: Quasi-experimental analysis of right-to-health litigation in Brazil

Abstract

The constitutional right to health in Brazil has entitled patients to litigate against the government-funded national health system (SUS), claiming access to various health treatments including those excluded from the health system's benefits package. Courts have tended to rely on a single medical prescription to judge these cases in favor of individual patients and against the health system. The large volume of cases has had a substantial financial impact on the government's health budget and has created unfairness in accessing healthcare. To change courts' behavior, a new health technology assessment (HTA) body – CONITEC – was created in 2011. Its creation was accompanied by an administrative procedure that made decisions about the health system's benefits package more transparent, accountable, participative and evidence-informed. It was expected that this HTA system would bring more legitimacy to the government's priority-setting decisions and promote deference from the courts. This study tests whether Brazil's new HTA system succeeded in encouraging judicial deference by analyzing a stratified random sample of 13,263 court decisions for whether the existence of a CONITEC report resulted in less frequent court orders to provide treatment for individual litigants. The results show that the creation of CONITEC did not change courts' behavior; courts still decide in favor of patients in most cases. Indeed, even when there was a CONITEC report recommending against government funding for a particular healthcare treatment, the vast majority of the relatively few patients who were unsuccessful in obtaining a health benefit at their first court hearing later obtained a favorable decision after appealing to a higher court. This finding was confirmed through an interrupted time-series analysis that did not find an impact of having a CONITEC report on courts' willingness to override a government priority-setting decision. In fact, CONITEC was rarely cited in court decisions, even when litigants mentioned the existence of a CONITEC report.

Judicialization of health: profile of demands for oncological medicines in a state in the central region of Brazil

“…In some studies, most reports originated in the private system (38%) [ 69 ]. In addition, the medical report or prescription of public origin, issued by a professional from SUS , has greater weight as the primary evidence that the health system recognizes the need [ 73 , 82 ]. Medical reports of public origin combined with the income of the participants demonstrate that judicialization is yet another way for individuals with low family income to access needed medications [ 6 ].…”

Entre justiça e gestão: colaboração interinstitucional na judicialização da saúde

“…A especialização, em especial em relação à defesa judicial, concretiza uma demanda por tradução da linguagem da política pública para a linguagem do processo judicial. Como a literatura já destacou inúmeras vezes, a principal crítica à atuação judicial sobre a política de saúde é a de decidir de forma não técnica, ignorando decisões especializadas já tomadas pela burocracia estatal (Wang et al, 2020). Essa falta de deferência geraria consequências não desejáveis à política, como a alocação ineficiente e potencialmente regressiva de recursos públicos (Chieffi & Barata, 2009;Ferraz, 2011;Wang, 2015).…”

Integrating health technology assessment and the right to health: a qualitative content analysis of procedural values in South African judicial decisions

“…These rights have contributed in some countries to the judicialization of healthcare access, or the process by which individuals or groups attempt to gain access to healthcare through litigation: on the one hand, judicialization of healthcare access may undermine ostensibly reasonable health priority-setting by national governments working to implement UHC ( Norheim and Wilson, 2014 ; Dittrich et al. , 2016 ; Wang et al. , 2020 ), contribute to inefficient decision-making or budget distortions ( Yamin and Parra-Vera, 2009 ; Biehl et al.…”

“…, 2020 ), contribute to inefficient decision-making or budget distortions ( Yamin and Parra-Vera, 2009 ; Biehl et al. , 2019 ; Ettelt, 2020 ; Wang et al. , 2020 ), or perpetuate and exacerbate inequities in healthcare access ( Andia and Lamprea, 2019 ), thereby fuelling the concern that there may be an irreconcilable tension between the right to health and priority-setting efforts; on the other hand, judicialization may in some contexts promote equity in healthcare access ( Biehl et al.…”