Is the judicialization of health care bad for equity? A scoping review

Abstract

Background The term “judicialization of health care” describes the use of rights-based litigation to demand access to pharmaceuticals and medical treatments. The judicialization of health care in Latin America has two defining features. Firstly, it has been conducted in an individualized fashion. Secondly, it is highly pharmaceuticalized , since most public expenditure related to health rights litigation is invested in paying for costly medications. Recent studies also suggest that the judicialization of health care is bad for equity since it skews limited health resources away from the poorest citizens and in favor of the more affluent. Methods We used a scoping methodology to analyze the study-design and the quality of the data employed by the literature that explicitly assesses the impact of the judicialization of health care on equity in Latin American countries. Articles were selected on the basis of their use of an empirical strategy to determine the effect of the judicialization on equity. We searched Google Scholar, PubMed, Scopus, and Scielo databases. We also went through the studies’ bibliographic references, and hand-searched key journals and authors. Results Half of the studies analyzed find that judicialization has a negative impact on equity, but the other half finds that evidence is inconclusive or that the judicialization of healthcare has a positive effect on equity. The majority of the studies that collect their own data rely on limited samples that are sometimes not representative and mostly not generalizable. Only few studies conduct systematic comparative analysis of different cross-country or within-country cases. None of the studies reviewed aim to establish causation between judicialization and health outcomes. Conclusions We conclude that in order to prove or disprove that the judicialization of health care is at odds with equity we first need to overcome the methodological and research-design problems that have beleaguered the available empirical studies. We also conclude that pharmaceuticals’ price regulation, state capacity, the behavior of litigants, prescribers and judges, and the economic interests of big-pharma, are variables that have to be incorporated into a rigorous empirical literature capable of assessing the regressive effect of health rights’ litigation. Electronic supplementary material The online version of this article (10.1186/s12939-019-0961-y) contains supplementary material, which is available to authorized users.

Realizing the right to health in Latin America, equitably

“…Second, studies highlighting efforts to ensure the right to health for specific disease conditions [ 10 , 12 , 20 , 24 ]. Third, papers analyzing the role of judicialization as a mechanism to ensure the right to health of populations and what it is currently playing across some of the countries in the region in this area [ 2 , 16 , 23 , 26 ]. Fourth, the summary presents the studies that try to elicit underlying policy factors to the equitable realization of the right to health across countries [ 14 , 15 ].…”

“…“Lawsuits” to obtain care that has been denied, have been used by patients across countries in the Latin America and Caribbean Region to different extents. In a scoping review [ 2 ], provide a background on the existing evidence on the impact of judicialization on equity as published in peer-reviewed journal articles, as well as grey literature. Their findings suggest a concentration of studies about judicialization cases in Brazil (54% of studies) and Colombia (23% of studies).…”

“…They also find an increase in publications on the subject over time with a greater percentage of publications between 2011 and 2014 (66%) as compared to the previous 4-year period (17%) and the following 4 years after 2014 (17%). Although a third of studies have ambiguous findings on the effect of judicialization on equity (31%), nearly half (49%) point to negative effects on equity (increases in inequity), and 20% suggest improvements in equity due to this mechanism [ 2 ]. In support of these findings [ 26 ], outline variation in the use of judicialization across Latin America and the Caribbean to enforce the right to health while balancing the democratization and legitimization of priority-setting processes.…”

Incorporação De Tecnologias No Sus E Possíveis Relações Com a Judicialização Da Saúde

“…Todavia, em uma revisão de escopo, cujo objetivo era analisar a literatura inovadora para entender o impacto da judicialização na equidade do fornecimento de serviços públicos de saúde no Brasil, Colômbia, Costa Rica e Argentina, Andia & Lamprea (2019) encontraram que 35% das publicações avaliadas, a maioria delas com foco no cenário brasileiro, apresentaram indícios de que a judicialização pode ter efeitos positivos ou ambíguos na alocação de recursos públicos para saúde. O número reduzido de estudos encontrados, suas limitações metodológicas e a diversidade de conclusões, levaram os autores a afirmar que ainda não há elementos suficientes para definir se, nesses países, este fenômeno interfere na alocação de recursos públicos para saúde de maneira prejudicial ou benéfica.…”

COVID-19 and the judiciary: the case for access to testing Sudhi versus Union of India

“…Despite growing success, policy makers and scholars still question courts' ability to successfully uphold the right to health and achieve more equitable gains in policy. [2][3][4] Criticisms of courts' engagement with the right to health largely concern their ability to balance competing interests and distribute limited resources. When courts engage with health, they are often seen as ignoring resource limitations.…”