Right to Health Litigation in Brazil: The Problem and the Institutional Responses: Figure 1.

Abstract

This article first analyses how courts, by applying the right to health as a trump against rationing decisions, have become a relevant healthcare policy-maker in Brazil. Based on empirical findings, it argues that right to health litigation makes the Brazilian public health system less fair and efficient. It then discusses three responses to the negative impact of litigation on the health system: the public hearing held by the Supreme Federal Court and the test established thereafter; the recommendations by the National Council of Justice aimed at building courts' institutional capacity; and Federal Law 12.401/11, which created a new health technology assessment system. Based on a comparative institutional analysis, it concludes that the latter response is the most adequate because it keeps the substantial decisions on the allocation of healthcare resources in the institution that has better capacity to make them and facilitates the judicial control of procedure. This is not the final published version and changes have been made in the editing stages. The final version of this article is available in http://hrlr.oxfordjournals.org/content/15/4/617 2 Right to health litigation in Brazil has already been discussed in the literature on social rights adjudication. 1 This article, however, presents a more comprehensive review of the empirical findings which provides more solid grounds for answering three questions: what is demanded by claimants; the economic impact of the decisions on the public health budget; and how courts judge these cases. The data reveal that litigation in Brazil has reached an impressive scale and has made of courts a major player in the allocation of healthcare resources, but in a way that makes the public health system less fair and efficient.The second part of this article compares three responses and the institutions they create to control the negative impact of litigation on the public health system: the public hearing held by the Supreme Federal Court (STF) and the test established thereafter to define a sphere of judicial self-restraint; the recommendations by the National Council of Justice (CNJ) aimed at building courts' institutional capacity; and the enactment of Federal Law 12.401/11, which created a new health technology assessment system.Claims for the provision of health treatments, although not necessarily using the language of the right to health, are certainly not a phenomenon restricted to Brazil. In many jurisdictions the expansion of judicial power to cover issues of social policies, the increase in the cost of healthcare, and better informed and less acquiescent patients have all brought to courts discussions about priority-setting in healthcare that were in the past left to the entire discretion of legislatures and health authorities. 2

Access to treatment and the constitutional right to health in Germany: a triumph of hope over evidence?

“…However, in other jurisdictions the ‘right to health’ is interpreted in favour of patients despite the fact that resources are limited. A study of access to health care cases in Brazil highlights some undesirable consequences of having relatively unrestricted opportunities to invoke a constitutional ‘right to health’ to challenge decisions of regulatory bodies to exclude health services that are proven to be insufficiently effective or cost-effective (Wang, 2015). Such excessive use of litigation can endanger the financial sustainability of public health care systems, especially those that already experience severe funding constraints (Kuchenbecker and Planczyk, 2012; Wang, 2015).…”

“…The involvement of courts in access to health care decisions is widely debated internationally (Syrett, 2007; Newdick, 2009; Flood and Gross, 2014; Wang, 2015; Kavanagh, 2016; Moes et al ., 2016). In low- and middle-income countries, a constitutional right to health can provide an important lever to improve access to health care and promote universal health coverage (Forman et al ., 2016).…”

“…A study of access to health care cases in Brazil highlights some undesirable consequences of having relatively unrestricted opportunities to invoke a constitutional ‘right to health’ to challenge decisions of regulatory bodies to exclude health services that are proven to be insufficiently effective or cost-effective (Wang, 2015). Such excessive use of litigation can endanger the financial sustainability of public health care systems, especially those that already experience severe funding constraints (Kuchenbecker and Planczyk, 2012; Wang, 2015). In Colombia, excessive litigation based on ‘right to health’ legislation has threatened the financial sustainability of publicly funded health care, with almost three million cases documented in little more than a decade (1999–2010) (Lamprea, 2014).…”

Economic evaluation of an active search system to monitor the outcomes of health-related claims

“…(1) It involves ethical issues, such as the role of the Government in the mediation of individual and collective interests and rights, (2) due to the imbalance created in health planning, (3) negatively affecting the system beneficiaries. (4) Despite the substantial amount of academic data covering medication requests, (5) characteristics of proceedings, (2) mapping of lawsuits in several scenarios, (6) among others, the means to obtain reliable data are decentralized, with variable access to information and lack of standardization, (7) regardless of the efforts made by research groups in specific segments with expressive results. (8) The main item requested in court is medication.…”

Realizing Social Rights: The Material Impacts of Constitutional Entrenchment

“…The focus has been on individual legal cases or the fortunes of particular social movements using litigation as a primary strategy for advancing their cause (Scott;Alston, 2000;Heywood, 2009;Scherer, 2004), the treatment of a particular right (Coutinho, 2014;Hohmann, 2013), and the development of jurisprudence in a given apex court (Roux, 2013;Wang, 2015)"event-place":"Cambridge", "ISBN":"978-1-107-61906-7", "callnumber":"KTL2620 .R68 2013X", "shortTitle":"The politics of principle", "author" :[{"family":"Roux", "given":"Theunis"}], "issued":{"date-parts": [["2013"]]}}},{"id" :19791, "uris":["http://zotero.org/users/45401/items/5MSDCDFQ"], "uri":["http:// zotero.org/users/45401/items/5MSDCDFQ"], "itemData":{"id":19791, "type":"arti cle-journal", "title":"Right to Health Litigation in Brazil: The Problem and the Institutional Responses", "container-title":"Human Rights Law Review", "page":"617--641","volume":"15","issue":"4","source":"hrlr.oxfordjournals.org.myaccess. library.utoronto.ca", "abstract":"This article first analyses how courts, by applying the right to health as a trump against rationing decisions, have become a relevant healthcare policymaker in Brazil.…”