Decisões judiciais sobre acesso aos medicamentos em Pernambuco

Abstract

OBJECTIVE:To analyze decisions from the legal system concerning the population's access to medicines within the Brazilian Public Health System through judicial channels, with regard to decision-making criteria and possible political and economic pressure. METHODS:This was a descriptive retrospective study on documents with a quantitative and qualitative approach. Data were gathered from the State of Pernambuco Superintendency for Pharmaceutical Care, and the data sources used were 105 lawsuits and administrative reports between January and June 2009. It was ascertained which medications have a patent or patent request in the database of the Brazilian Patent Offi ce (INPI), in order to identify the frequency with which patents feature in lawsuits. The data obtained were classifi ed according to Anatomical and Therapeutic Chemical System. To analyze the judicial decisions, the theory of autopoietic social systems was used. RESULTS:There were lawsuits involving 134 medications, with an estimated value of R$ 4.5 million for attending the treatments requested. 70.9% of the medications had a patent or a patent request and they were concentrated in three therapeutic classes: antineoplastic and immunomodulating agents; digestive tract and metabolism; and sensory organs. Six central ideas within judges' decision-making criteria were identifi ed (the federal constitution and medical prescriptions), along with pressure between the legal, economic and political systems concerning access to medications. CONCLUSIONS:The analysis on judicial decisions based on the theory of autopoietic social systems made it possible to identify mutual stimulation (dependency) between the legal system and other social systems in relation to the issue of citizens' access to medications. This dependency was represented by the federal constitution and intellectual property. The federal constitution and medical prescription were identifi ed as decision-making criteria in lawsuits. Intellectual property represented possible political and economic pressure, especially in cases of launching medications into the market.

Studies published in indexed journals on lawsuits for medicines in Brazil: a systematic review

“…In addition, 80% of these drugs were manufactured by eight pharmaceutical companies, and 90.95% of the funds from the Pernambuco State Health Department (SES-PE) for purchasing these drugs went to just seven laboratories 5 .…”

“…Four studies 2,5,6,12 (23,5%) analyzed the plaintiffs' allegations in the lawsuits, or the grounds for the suit. The main claims involved urgency in the patient's health condition, imminent risk of death, and prescriptions and/or medical and laboratory reports proving the need for the product.…”

“…The researchers found that the main argument by judges was the fundamental right to health, guaranteed by Article 196 of the 1988 Federal Constitution and Law n. 8,080/1990. According to Stamford & Cavalcanti 5 , the Constitution has the power to ensure enforcement of public policies. Meanwhile, the allegations by patient-plaintiffs and their attorneys and defenders are based on urgent or emergency need, risk of death, and/or need for the medicine as attested by the physician, and the judges do not generally request any additional information.…”

Health Policy on the pages of Revista de Saúde Pública

“…The articles of Marques and Dallari 57 and Vieira 98 can be considered milestones in that field. Subsequently, several articles on legal demands for medications in many States of Brazil 22 , 53 , 90 were published. The relations between the productive sector of medications with high technological incorporation and the legal system were unveiled by Chieffi and Barata 20 , which identified that a small number of lawyers answered by most of the lawsuits filed against SUS.…”

A Judicialização Da Saúde E as Políticas Públicas Para Fornecimento De Medicamentos: Uma Análise a Partir Das Decisões Do TRF Da 5ª Região.

“…Nesse sentido, diversos estudos e debates começam a surgir com intuito de dar suportes teóricos para a delimitação de marcos jurídico-legais da saúde destacando-se pesquisas realizadas no município de São Paulo (Wang et al, 2014), Pernambuco (Stamford;Cavalcanti, 2012), Minas Gerais (Machado et al, 2011), Rio de Janeiro (Messeder et al, 2005), Alagoas (Macêdo et al 2015), Santa Catarina (Pereira, 2010), dentre outros, todos voltados para a compreensão do fenômeno da judicialização, traçando o perfil dos processos, natureza das demandas, fazendo inferências sobre as causas, caracterizando os diversos aspectos envolvidos e apontando para possíveis alternativas ao problema.…”