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Reaching Out to the Needy? Access to Justice and Public Attorneys’ Role in Right to Health Litigation in the City of Sao Paulo
Abstract
The growth of right to health litigation in Brazil raises a debate regarding its distributive effects in a resource constrained setting. For some, the distributive effects of litigation are mostly negative because litigation tends to benefit a privileged socio-economic group and because litigation often forces health policy authorities to divert scarce resources from comprehensive health programs that benefit the majority of the population. Nevertheless, there are also those who argue that courts can provide an important institutional voice for the poor and promote health equity if they manage to access it. Our aim is to analyze lawsuits in which litigants are represented by public attorneys in right to health litigation to inquire if at least litigation sponsored by these state funded legal institutions is reaching out the needy in the city of Sao Paulo. Our conclusion it that there are still important obstacles for litigation to have the positive impact analysts in the pro-litigation camp expect, even if the analysis is narrowed only to the litigation promoted by public attorneys.
... Como já apontado, a judicialização da saúde promove o acesso às ações e serviços negados aos usuários que procuraram por assistência seguindo os passos preconizados pelo SUS. Assim, a judicialização vem sendo considerada por alguns estudiosos (1,18,20), como uma porta de entrada alternativa no sistema de saúde. Sobre isto, a judicialização da saúde no modelo instituído para o país pelo SUS, vem criando duas portas de entrada para este mesmo sistema. ...
... A outra porta, destinada a grande parcela da população que depende da saúde pública para o atendimento de suas necessidades de saúde, é aquela pensada pelos idealizadores da política sanitária em vigência no país. Em função dos altos custos e do redirecionamento e redefinição de prioridades, beneficiando os que à justiça recorreram, estes últimos sujeitos tem o acesso mais limitado e dificultado ainda (18). ...
Introdução: A judicialização da saúde é uma expressão cada vez mais presente nos cenários de assistência à saúde no Brasil materializada, principalmente, pelos mandados judiciais para a realização de procedimentos diagnósticos e terapêuticos, consultas, internações e dispensação de insumos médico-cirúrgicos. Objetivo: descrever e discutir a estrutura das representações sociais da judicialização das ações e serviços de saúde no âmbito do Sistema Único de Saúde pelos profissionais de saúde envolvidos no processo de judicialização da saúde. Materiais e Métodos: Estudo qualitativo, pautado na Teoria das Representações Sociais, realizado com 152 sujeitos, em um hospital universitário e na central de regulação de procedimentos e leitos na cidade do Rio de Janeiro. Aplicou-se a Técnica de Evocação Livre através do termo indutor “judicialização da saúde”, sendo essas analisadas com a técnica de quatro casas. Resultados: Foram evocadas 761 palavras, com média das ordens médias de evocação de 3, com frequência máxima de 17 e mínima de 10. Discussão: Identificou-se que os profissionais de saúde apresentam um posicionamento negativo diante da realidade imposta pela judicialização, entretanto reconhecem esse recurso como necessário mediante a crise da saúde pública brasileira. Conclusões: Os profissionais de saúde trabalham sob a pressão do poder judiciário, com a ameaça de prisão levando a um cotidiano estressante de suas práticas profissionais decorrente de uma ação ineficaz do Estado na execução da política de saúde.Palavras chave: Sistema Único de Saúde, Política de Saúde, Percepção Social. (Fonte: DeCS BIREME).Cómo citar este artículo: Ramos R, Gomes AM. A judicialização da saúde pública no brasil: um estudo de representações sociais. Rev Cuid. 2014; 5(2): 827-36. http://dx.doi.org/10.15649/cuidarte.v5i2.124
... As a result, judges never scrutinize the reasons that made SUS incorporate a particular health technology (Wang et al, 2020), for example, or the reasons why a patient was kept in hospital A instead of hospital B. They instead grant health benefits through legal injunctions, based solely on the doctor's prescription, before even hearing the state's defence, and always assuming a violation of the constitutional right to health. When asked to make more comprehensive interventions, in the case of specific class actions demanding more structural reform, courts shy away: they claim separation of powers, and consider themselves in these collective cases as interfering too much with the executive's job (Wang and Ferraz, 2013). ...
... The story of mass litigation in Brazil has been told through research suggesting the misspending of public resources and diversion of funds to the richer classes seeking the procurement of low-priority (and sometimes unproven) technologies. 1 The negative effects of courts in Brazil are still partially contested (even in this journal). 2 This paper describes one detrimental aspect, until now rarely explored: the misuse of the right to health as a normative tool to impose forced drug dependence treatment through court decisions. ...
Brazilian citizens have a constitutional right to health. This right has also been a powerful instrument in the judicial enforcement of drug dependence treatment in Brazil. This study reviews a sample of decisions from the state of São Paulo and provides evidence that the right to health has been used to justify compulsory admission to treatment for people deemed to have a drug use disorder. These claims are filed against the state, mainly by families, who argue that the right to health of individuals is being violated. This model of litigation-oriented toward the satisfaction of a presumed health care need-does not engage sufficiently with individual informed consent and participation in the delivery of treatment, as a person-centered approach would demand. Further, the judgments reveal a low level of awareness among judges about the procedural rights of people ordered to undergo compulsory treatment, despite the large-scale implementation of the right to health via courts in Brazil. This problematic interpretation of the right to health, in the context of mounting punitive policies and ideology in Brazil, can be harmful to people who use drugs and bring about an environment of more limited patient safeguards.
... For example, Brazil is known for litigiousness related to the juridification of social rights, combined with their poor availability (Vargas-Peláez et al. 2014;Wang & Ferraz 2013) and the extensive legal aid system (Castro et al. 2017). Were the social security system more robust, the burdens on A2J mechanisms would be lighter. ...
The article discusses selected problems of access to justice in Poland as an important context for the rule of law crisis since 2015. The difficulties in formally addressing justiciable problems were illustrated by the findings of empirical studies conducted in 2015 and 2018. The article argues that having experienced obstacles in addressing their justiciable issues, Polish society has developed what can be termed a highly rational stance towards the legal system, which can be expected to contribute to its reluctance to actively oppose the sweeping reforms of the judiciary introduced by populists. Understanding the effects of inaccessibility of justice combined with insufficient options to resolve justiciable problems outside of the law and legal institutions is an important addition to the prevailing politics- and culture-centred approaches to understanding of the long-standing multifaceted conflict around the judiciary in Poland.
... While the justiciability of socioeconomic rights is of increasing interest internationally, the high volume of individual right-to-health litigation (particularly over access to medicines) throughout Latin America stands out (Biehl et al., 2009;Biehl, Amon, Socal & Petryna A, 2012;Biehl, Socal & Amon 2016b;Dittrich et al., 2016;Gauri & Brinks, 2008;Yamin & Gloppen, 2011;Pepe et al., 2010;Reveiz et al. 2012). With the increasing number of cases has come controversy over the phenomenon and its consequences (Azevedo, 2007;Ferraz, 2009;Messeder, Osorio-de-Castro & Luiza, 2005;Wang & Ferraz, 2013). ...
... 100 Others, however, have suggested that this is a least partly the result of litigants including multiple medications-both covered and not-in their claims and claimants seeking medication for "off-label" (prescribed for condition other than one the drug was approved for) or off protocol (the patient does not meet the clinical criteria established for prescription) use. 101 It should also be remembered that this form of litigation is at least as much administrative as it is constitutional. ...
In this paper, I examine the social rights jurisprudence of Brazil and South Africa, two jurisdictions that have adopted markedly different approaches to their interpretation. In doing so, I advance three arguments relating to the study of social rights adjudication and the effects of the resulting jurisprudence. First, understanding the development of social rights jurisprudence requires understanding the pre-existing set of judicial norms that define the role of the judges and acceptable mode(s) of legal reasoning. Second, variations in institutional design and understandings of precedent means that one cannot assume that the decisions of the apex court will be universally or quickly incorporated into the decisions of the lower courts. As such, it may be necessary to look beyond apex court decisions to get an accurate picture of patterns of social rights jurisprudence in a given jurisdiction. Third, both of the dominant approaches have the potential to institgate significant policy change, but they also encourage different types of litigation and different litigants. This, in turn affects the approach taken to addressing the policy areas and does not necessarily lead to the prioritization of areas where the investment of state resources will yield the greatest returns or be the most socially just.
... 8 Therefore, individual solutions tend to take precedence over structural orders. 9 It is worth noting that, apart from the public (and universal) health care system in Brazil, there is also a parallel, private system of care. People using the private health care system are usually wealthier individuals who can afford private health insurance, or employees who have health insurance as part of their benefits package. ...
This article investigates policy and bureaucracy changes provoked by individual litigation for health care rights in Brazil, especially the one regarding access to medicines, looking at the effects it produced in relation to health technology assessment (HTA) and health care governance. The article first contextualizes the social, legal, and political conditions for the development of individual litigation for health care rights in Brazil. Then it points out the changes brought about by this litigation model and discusses their potential to contribute to efficiency and fairness in the health care system by the improvement of the HTA decision-making process and health care governance.
... 8 Therefore, individual solutions tend to take precedence over structural orders. 9 It is worth noting that, apart from the public (and universal) health care system in Brazil, there is also a parallel, private system of care. People using the private health care system are usually wealthier individuals who can afford private health insurance, or employees who have health insurance as part of their benefits package. ...
This article investigates policy and bureaucracy changes provoked by individual litigation for health care rights in Brazil, especially the one regarding access to medicines, looking at the effects it produced in relation to health technology assessment (HTA) and health care governance. The article first contextualizes the social, legal, and political conditions for the development of individual litigation for health care rights in Brazil. Then it points out the changes brought about by this litigation model and discusses their potential to contribute to efficiency and fairness in the health care system by the improvement of the HTA decision-making process and health care governance. Danielle da Costa Leite Borges, LL.M., MSc, PhD, is postdoctoral research fellow at Scuola
... Vários autores que têm estudado a questão da judicialização posicionam-se na vertente de que o fato de ser determinado ao Estado o fornecimento de certo medicamento e ou insumo, deve ser observado também sobre a ótica da ciência da saúde, vez que para ter acesso ao tratamento é preciso observar os protocolos clínicos e as diretrizes terapêuticas, nos termos do que dispõe a Lei nº 8.080/90 em seu capítulo sobre a assistência terapêutica e a incorporação de tecnologia em saúde, incluído recentemente pela Lei nº 12.401/11 e pelo Decreto nº 7.508/11 (MACHADO et al., 2011;VIEIRA;ZUCCHI, 2007;FERRAZ, 2013). ...
O presente artigo visa analisar a judicialização da saúde com foco nas decisões judiciais concessivas de medicamentos no Estado de Mato Grosso do Sul, haja vista esta apresentar-se como um fenômeno atual de larga abrangência quanto ao número de decisões judiciais, ao montante despendido para o cumprimento de tais decisões e as implicações orçamentárias do setor da saúde. Busca-se questionar se tais decisões, ao deixarem de considerar a escassez de recursos orçamentários, não geram prejuízos à efetividade das políticas públicas de saúde, comprometendo os princípios norteadores do SUS. Foi utilizado de pesquisa bibliográfica, bem como de dados do Tribunal de Justiça de Mato Grosso do Sul. Dentre as conclusões apresentadas tem-se que a judicialização da saúde acaba por gerar reflexos que abalam a condução administrativo-financeira do Estado.
... There is an emerging body of scholarship on right-to-health litigation, but most studies tend to corroborate the views of public health administrators (Campos Neto et al., 2012;Chieffi andBarata, 2009, 2010;Ferraz, 2009;Gomes and Amador, 2015;Da Silva and Terrazas, 2008;Vieira and Zucchi, 2007;Wang and Ferraz, 2013). Yet the evidence for these claims is too-often obscured by ideological arguments and constrained by small samples, limited geographic coverage, and examination of very few variables. ...
Situated at the meeting points of Law and Medicine, the "judicialization of the right to health" is a contested and hotly debated phenomenon in Brazil. While government officials and some scholars argue that it is driven by urban elites and private interests, and used primarily to access high-cost drugs, empirical evidence refute narratives depicting judicialization as a harbinger of inequity and an antagonist of the public health system. This article's quantitative and ethnographic analysis suggests, instead, that low- -income people are working through the available legal mechanisms to claim access to medical technologies and care, turning the Judiciary into a critical site of biopolitics from below. These patient-citizen-consumers are no longer waiting for medical technologies to trickle down, and judicialization has become a key instrument to hold the State accountable for workable infrastructures.
RESUMO: O artigo abordará a possibilidade ou não de deferimento judicial de medicamentos não contemplados nas políticas do SUS e, em caso positivo, quais os critérios judiciais que deverão ser cumpridos para tanto. A pesquisa, além de realizar revisão bibliográfica sobre a judicialização da saúde, analisará a correlação de progenia entre o RE nº 566.471/RN e a STA 175, a fim de aferir as convergências, divergências e os critérios estipulados pelo STF para o deferimento de medicamentos fora da lista do SUS. O artigo parte de um estudo bibliográfico e documental de viés institucionalista. Concluímos que não há uma interação coesa entre os votos, mas tão somente uma elaboração particular de cada ministro sobre os parâmetros, dificultando a compreensão jurídica e a extração de critérios uniformes e objetivos posteriormente replicáveis. Ademais disso, os votos formulam uma contestável interpretação sobre o Direito à Saúde e sobre a hipossuficiência dos requerentes. PALAVRAS-CHAVE: Judicialização da Saúde; Supremo Tribunal Federal; Critérios Interpretativos Vinculantes; Medicamentos não incluídos em lista do SUS. ABSTRACT: The article will address the possibility or not of judicial approval of medicines not covered by SUS policies and, if so, what judicial criteria must be met for this purpose. The research, in addition to carrying out a bibliographical review on the judicialization of health, will analyze the progeny correlation between RE nº 1 Doutor em Direito pela Universidade Federal do Pará. Professor de Direito Constitucional e Internacional da Universidade Federal do Pará. Menção honrosa no prêmio CAPES de tese 2016.
Patients without access to medicines often resort to the judicial system. However, no systematic review has discussed the quality of studies and the factors that may influence the access to medicines from judicialization. This study aimed to characterize the quality of research on access to judicialized medicines and their influence on public policies in Brazil. A search was conducted in the LILACS, PubMed/Medline, Scopus, and Web of Science databases using the terms “judicialization” and “medication”. Two reviewers identified articles that met the inclusion criteria. Only studies written in English, Portuguese, or Spanish published from 1990 to 2018 were included. The study selection resulted in a final sample of 45 articles. The retrospective descriptive design was the most common methods, based on reports and lawsuits. A high level of heterogeneity among the studies hindered the comparison and generation of evidence capable of supporting judges’ decisions based on technical-scientific criteria. This review showed that studies were heterogeneous and had low methodological quality. Moreover, they did not propose viable solutions for health managers and formulators to face the problem.
This book offers a fresh perspective on how to effectively address the issue of unequal access to healthcare. It analyses the human right to health from the underexplored legal principle of solidarity, proposing a non-commercial understanding of the positive obligations inherent in the right to health.
The Future of Economic and Social Rights - edited by Katharine G. Young April 2019
O artigo aborda a judicialização da saúde e pondera sobre sua utilização como instrumento de acesso à saúde pelos cidadãos atendidos pela Defensoria Pública. Afirma-se que muitos usuários do SUS enfrentam as consequências negativas do descompasso entre o SUS previsto na Constituição de 1988 e a realidade da prática institucional. Nesse contexto, a judicialização da saúde se apresenta aos cidadãos como alternativa legítima e democrática de concretização de direitos fundamentais e acesso à saúde. Tal instrumento, todavia, tem sido criticado nos debates em âmbito institucional e acadêmico. O artigo aponta as inconsistências dessas avaliações e defende a reorientação desse debate a partir da análise da atuação institucional da Defensoria Pública, bem como pelo perfil das demandas propostas pelo referido órgão. São detalhados, ainda, arranjos institucionais nos quais os Defensores Públicos atuam como mediadores entre as necessidades dos cidadãos e os recursos do sistema de saúde. Conclui-se que a atuação da Defensoria Pública demonstra que a judicialização da saúde pode ser utilizada como instrumento de estruturação do SUS, especialmente na correção de falhas e injustiças no acesso à saúde pelos cidadãos de baixa renda.
Over the past two decades, debate over the whys, the hows, and the effects of the ever-expanding phenomenon of right-to-health litigation (‘judicialization’) throughout Latin America have been marked by polarised arguments and limited information. In contrast to claims of judicialization as a positive or negative trend, less attention has been paid to ways to better understand the phenomenon in real time. In this article, we propose a new approach—Judicialization 2.0—that recognises judicialization as an integral part of democratic life. This approach seeks to expand access to information about litigation on access to medicines (and health care generally) in order to better characterise the complexity of the phenomenon and thus inform new research and more robust public discussions. Drawing from our multi-disciplinary perspectives and field experiences in highly judicialized contexts, we thus describe a new multi-source, multi-stakeholder mixed-method approach designed to capture the patterns and heterogeneity of judicialization and understand its medical and socio-political impact in real time, along with its counterfactuals. By facilitating greater data availability and open access, we can drive advancements towards transparent and participatory priority setting, as well as accountability mechanisms that promote quality universal health coverage.
In Brazil's hybrid government of social protection and market expansion, there is under way a fabulation of power, which ultimately serves to “de-poor” people seeking care, working infrastructures, and justice while also shoring up state politics as usual. This process became evident through the failure of a collaborative research project that I coordinated on right-to-health litigation. In rethinking that failure as an experiment in public ethnography, I draw on core disagreements with public officials over the interpretation of our findings from a legal database. Analyzing these disagreements provides an entry point into the mechanisms of veridiction and falsification at work in Brazil, whose government sees itself as providing public goods beyond the minimum neoliberal state. Countering state mythology, public ethnography thus illuminates the improvised quality of postneoliberal democratic institutions and opens up new avenues for theorizing power and the political field.
The impact of increasing numbers of lawsuits for access to medicines in Brazil is hotly debated. Government officials and scholars assert that the “judicialization of health” is driven by urban elites and private interests, and is used primarily to access high-cost drugs. Using a systematic sample of 1,262 lawsuits for access to medicines filed against the southern Brazilian state of Rio Grande do Sul, we assess these claims, offering empirical evidence that counters prevailing myths and affirms the heterogeneity of the judicialization phenomenon. Our findings show that the majority of patient-litigants are in fact poor and older individuals who do not live in major metropolitan areas and who depend on the state to provide their legal representation, and that the majority of medicines requested were already on governmental formularies. Our data challenge arguments that judicialization expands inequities and weakens the universal health care system. Our data also suggest that judicialization may serve as a grassroots instrument for the poor to hold the state accountable. Failing to acknowledge regional differences and attempting to fit all data into one singular narrative may be contributing to a biased interpretation of the nature of judicialization, and limiting the understanding of its drivers, consequences, and implications at local levels.
Nos últimos anos constata-se no Brasil um aumento do número de decisões judiciais obrigando o poder público a fornecer medicamentos, insumos, equipamentos e cirurgias. Os juízes tendem a desconsiderar o impacto orçamentário de suas decisões e entendem que todos os entes da federação podem ser igualmente responsabilizados pelo fornecimento de qualquer item pedido pelo paciente. O presente estudo analisa o impacto dessas decisões para a gestão orçamentária da política de saúde no município de São Paulo por meio de uma estimativa de gastos com a judicialização para o ano de 2011 a partir dos dados disponibilizados pelo município e as publicações no Diário Oficial concernentes à compra de medicamentos e insumos sem licitação pela Secretaria Municipal de Saúde. De acordo com as estimativas do presente trabalho, o gasto do município com judicialização da saúde em 2011 é o equivalente a 6% do que o município gastou com sua política de assistência farmacêutica e 10% do total gasto com fornecimento de medicamentos e material hospitalar, ambulatorial e odontológico. Além do mais, cerca de 55% desse gasto são destinados ao fornecimento de medicamentos de responsabilidade de estados ou União, e por volta de 45% para tratamentos não contemplados pelo Sistema Único de Saúde.
[= During the last years, the number of judicial decision ordering the provision of health treatments, equipment and surgeries by the public health system has increased. Judges tend to ignore their decisions' budgetary impact and to consider that the Federal Government entities can be considered equally responsible by the supply of any item ordered by the patient. This paper analyzes the impact of these judicial decisions for the budgetary management of health policy in the City of Sao Paulo. It was considered an estimate with the expenses on the judicialization for the year of 2011, taking into consideration the data made available by the city and the publications in the official gazette about the acquisition of medications without bidding by the Municipal Health Department. According to the estimate of this article, the expenses of the city with health judicialization in 2011 is equivalent to 6% of the amount that the city spent with its policy of pharmaceutical assistance, and 10% of the total amount spent with the supply of medications, and hospital, dental and outpatient care material. Moreover, around 55% of the total amount is spent with drugs supply which are responsibility from the states and the union, and around 45% is spent with treatments that are not included in the Unified Public System (known as SUS).]
During the last years, the number of judicial decision ordering the provision of health treatments, equipment and surgeries by the public health system has increased. Judges tend to ignore their decisions’ budgetary impact and to consider that the Federal Government entities can be considered equally responsible by the supply of any item ordered by the patient. This paper analyzes the impact of these judicial decisions for the budgetary management of health policy in the City of Sao Paulo. It was considered an estimate with the expenses on the judicialization for the year of 2011, taking into consideration the data made available by the city and the publications in the official gazette about the acquisition of medications without bidding by the Municipal Health Department. According to the estimate of this article, the expenses of the city with health judicialization in 2011 is equivalent to 6% of the amount that the city spent with its policy of pharmaceutical assistance, and 10% of the total amount spent with the supply of medications, and hospital, dental and outpatient care material. Moreover, around 55% of the total amount is spent with drugs supply which are responsibility from the states and the union, and around 45% is spent with treatments that are not included in the Unified Public System (known as SUS).
Can human rights bring social justice?
This collection of twelve essays explores the differences and similarities between social justice and human rights, providing divergent perspectives on whether and how human rights NGOs should pursue social justice.
Poverty, inequality and human rights
Worldwide socio-economic inequalities are mounting. While in absolute terms poverty rates are slowly going down, differences in income and wealth are growing. Deprived groups and protest movements mobilize to demand social justice. What do human rights have to offer them? This volume in Strategic Studies’ Changing Perspectives on Human Rights series focuses on conceptual and strategic differences and similarities between social justice and human rights.
Strategic decisions for human rights NGOs working on social justice
The twelve essays discuss different views on questions such as: Can human rights bring social justice? Can the human rights system speak out on political and economic structures that are seen as causing inequality? Should human rights organizations engage with political resource decisions? Would they risk being viewed as partisan if they engage with issues of redistribution or does their impartiality betray the poor and marginalized if they remain silent on system failures? Twelve essays provide diverging perspectives on the potential and limits of human rights for social justice and trade-offs in the strategic decisions of human rights NGOs.
Contributors to this Changing Perspectives on Human Rights volume
With contributions from Eduardo Arenas Catalán, Widney Brown, Sara Burke, Iain Byrne, Koldo Casla, Dan Chong, Ashfaq Khalfan, Rolf Künnemann, Doutje Lettinga, Jacob Mchangama, Samuel Moyn, Aryeh Neier, David Petrasek and Lars van Troost.
To analyze the profile of claimants and medicines demanded in lawsuits.
Descriptive study that examined 827 lawsuits with 1,777 demands of access to medicines in the period between July 2005 and June 2006 in the state of Minas Gerais, Southeastern Brazil. There were examined the type of health care provided to claimants and their attorneyship. The medicines were described based on the following: drug registration at the National Health Surveillance Agency (Anvisa); wheter they were essential medicines; supply in the Brazilian Health System programs; and evidence of drug efficacy.
More than 70% of the claimants were provided care in the private health system and 60.3% hired private lawyers. The most common diagnosis of claimants was rheumatoid arthritis (23.1%) and the immunosuppressant agents were the most frequent demand medicines (mainly adalimumab and etanercept). Approximately 5% of the medicines demanded were not registered at Anvisa, 19.6% were included in the Brazilian List of Essential Medicine, 24.3% were included in the High-Cost Drug Program and 53.9% showed consistent evidence of efficacy. Among the medicines that were not available in Brazilian Health System, 79.0% had therapeutic alternatives in drug programs.
The phenomenon of judicialization of health in Brazil can point out failures in the public health system as some medicines demanded are included in its lists. However, it is a barrier for rational drug use and application of the National Drug Policy guidelines, especially when there are demanded medicines with no evidence of efficacy and that are not included in Brazilian Health System standards.
To assess the distribution rate of legal suits according to drug (manufacturer), prescribing physician, and attorney filing the lawsuit.
A descriptive study was carried out to assess the lawsuits in the São Paulo State (Southeastern Brazil) courts registry in 2006, and amounts spent in complying with these lawsuits, and total costs with medication thus resulting.
In 2006, the São Paulo State Administration spent 65 million Brazilian reais in compliance with court decisions to provide medication to approximately 3,600 individuals. The total cost of the medication was 1.2 billion Brazilian reais. In the period studied, 2,927 lawsuits were examined. These lawsuits were filed by 565 legal professionals, among which 549 were attorneys engaged by private individuals (97.17% of the total legal professionals). The drugs scope of the lawsuits had been prescribed by 878 different physicians. By assessing the number of lawsuits filed per attorney, it was found that 35% of them were brought before the courts by 1% of them.
The data related to the lawsuits and to the medication classified according to manufacturer, show that a small number of attorneys is responsible for the largest number of lawsuits filed to obtain these drugs. The finding that more than 70% of the lawsuits filed for certain drugs are the responsibility of one single attorney, may suggest a close connection between this professional and the manufacturer.
The supply of medicines in response to court orders or injunctions has become a common practice in the State of São Paulo, Brazil. This 'judicialization' of the health system clashes with basic principles of the Brazilian Unified National Health System (SUS), such as equal opportunity to access health services. The aim of this paper is to analyze the legal action used to obtain medicines through the São Paulo State Health Department, from two main angles: judicialization of public policies and breach of the equity principle. This is a descriptive study of legal action taken to obtain medicines through the São State Health Department, as listed in the Electronic Court Docket System for the year 2006. Most cases were filed through private attorneys; 47% of the patients had obtained their prescriptions through private care; and 73% of the cases involved patients from the three wealthiest areas in the city of São Paulo. The data demonstrate that such legal action violates key principles of the SUS such as equity, thereby privileging individuals with higher purchasing power and more access to information.
While there is world-wide agreement on poverty reduction as an overriding goal of development policy, there is little agreement on the definition of poverty. Four approaches to the definition and measurement of poverty are reviewed in this paper: the monetary, capability, social exclusion and participatory approaches. The theoretical underpinnings of the various measures and problems of operationalizing them are pointed out. It is argued that each is a construction of reality, involving numerous judgements, which are often not transparent. The different methods have different implications for policy, and also, to the extent that they point to different people as being poor, for targeting. Empirical work in Peru and India shows that there is significant lack of overlap between the methods with, for example, nearly half the population identified as in poverty according to monetary poverty but not in capability poverty, and conversely. This confirms similar findings elsewhere. Hence, the definition of poverty does matter for poverty eradication strategies.
To describe how lawsuits, which demand the supply of drugs, impact on elements of the national drug policy.
This is a desk-based study using qualitative and quantitative methods. All legal proceedings brought by citizens against the Municipal Secretary of State of Sao Paulo, relating to the supply of drugs in 2005 were analyzed. A standardized form was used to collect data, with a view to carrying out an exploratory analysis.
A total of 170 cases relating to the supply of drugs were brought against the Municipal Secretary of State. The National Health System (SUS) was the source for 59% of the prescriptions: 26% from the municipal level, 33% from other levels. Cancer and diabetes were the diseases most commonly involved (59%). About 62% of drugs requested are on the lists of SUS services. Total expenditure was R$876,000 (Brazilian Reais), covering only non-selected items (i.e. those which are not included in the Municipal Register of Essential Medicines), 73% of which could be substituted. Of the total expenditure, 75% was spent on purchasing anticancer drugs, for which further clinical trials are required to prove their effectiveness. Two of these medicines were not registered in Brazil.
The majority of demands for drugs that have led to legal proceedings could be avoided if two SUS directives were followed, namely the organization of oncology services and the observance of reporting on essential medicines. Failure to do so causes a breakdown in the National Drug Policy, in equality of access and in the rational use of drugs within the National Health System.
Introduction. The adoption of the new Constitution in Brazil in 1988 ushered in a new era of social rights protections and a nascent jurisprudence on the topic. Supported by a broad-ranging recognition of social rights, the Brazilian judiciary has issued a number of seminal decisions that have positively affected the realisation of these rights, particularly the right to health. This chapter examines the protection of social rights in the Brazilian Constitution of 1988, emphasising the innovations and advances the Constitution has produced by identifying these rights, for the first time, as fundamental rights. From this constitutional analysis, the chapter moves on to examine the justiciability of social rights in Brazilian courts, analysing cases relating to the right to health and education and evaluating the response of Brazilian courts to the interpretation and implementation of social rights. Finally, the chapter draws some conclusions on the impact of social rights judgments in Brazil and offers thoughts on ways to address the challenges of ensuring a fuller use of the justiciable possibilities. SOCIAL RIGHTS IN THE 1988 CONSTITUTION. The Brazilian Constitution of 1988 represents a legal landmark in the country's democratic transition and in the movement towards the institutionalisation of human rights. Reflecting the ‘post-dictatorship' democratic consensus, this constitutional text marks the break with the era of the authoritarian military regimes that had held power since 1964.
This article discusses the right to health as provided by the Brazilian Constitution in light of the increasing number of court rulings that order government to supply health products and services that have not been incorporated into public policies by other means. Using the Constitution's concept of health as the point of departure, authors demonstrate that guaranteeing the right to health requires more comprehensive social and economic policies. They argue that scarcity of resources places a limit on the formulation of public policies and that equity should be the underlying principle for orienting resource allocation. The article contends that the interpretation of the right to health as the individual right to unlimited care (the predominant position in the Brazilian Judiciary) is sustained to the detriment of the Constitutional principles of equity and universality, and that this interpretation results in a reversal in the primary objectives of the Unified National Health System (SUS), transforming it into an instrument for the perpetuation of the country's persistently daunting health inequities.
The Brazilian Constitution states: "Health is the right of all persons and the duty of the State." Yet individuals in Brazil frequently face barriers to health prevention and treatment. One response to these barriers has been a "judicialization" of the right to health, with an increasing number of patients suing the government for access to medicines.
This study uses a mixed methods approach to identify trends in lawsuits for medicines in the southern state of Rio Grande do Sul (RS) and to characterize patient-plaintiffs. Electronic registries were used to determine the number of health lawsuits filed between 2002 and 2009. In-depth interviews were conducted with thirty patient-plaintiffs, and 1,080 lawsuits for medicines under review between September 1, 2008 and July 31, 2009 were analyzed to assess socio demographic, medical, and legal characteristics of patient-plaintiffs.
Between 2002 and 2009, the annual number of health-related lawsuits against the state of RS increased from 1,126 to 17,025. In 2009, 72% of lawsuits sought access to medicines. In-depth interviews revealed that patients are desperate to access medicines for chronic and advanced diseases, and often turn to the courts as a last resort. Among the 1,080 lawsuits examined, patient-plaintiffs were more likely to be older than 45 years (68%), retired or unemployed (71%), and low-income (among those who reported income, 53% (n=350) earned less than the national minimum wage). Fifty-nine percent of all cases were represented by public defenders. Plaintiffs reported 1,615 diseases and requested 2.8 drugs on average (range 1-16). Sixty-five percent of the requested drugs were on government pharmaceutical distribution lists; 78% of the 254 drugs on these lists were requested. In 95% of the cases analyzed, district courts ruled in favor of plaintiffs. Among the 917 cases with a final state high court ruling, 89% were in favor of the plaintiff. In justifying their rulings, judges most frequently cited the government's obligation under the Constitution's provision of a right to health.
Right-to-health litigation is a widespread practice in southern Brazil. Government pharmaceutical programs are struggling to fulfill their goal of expanded access and rational use of medicines, and poor patients are leveraging public legal assistance and a receptive judiciary to hold the state accountable to their medical needs. "Judicialization" is an alternative pathway for accessing health care, increasingly understood as access to medicines of all kinds. Tracking the health outcomes and budgetary impacts of right to-health court cases could help inform adequate treatment policy and evaluate trends in access.
This article describes four dimensions of health access-availability, acceptability, ability to pay and information-correlating these dimensions to indicators and discussing the complexity of the concept of access. For a study of these four dimensions, searches were conducted using the PubMed/MEDLINE, LILACS, SciELO, and World Health Organization Library & Information Networks for Knowledge (WHOLIS) databases. Large-circulation media vehicles, such as The Economist, The Washington Post, and the BBC network were also searched. The concept of health access has become more complex with time. The first analyses, carried out in the 1970s, suggested a strong emphasis on geographical (availability) and financial (ability to pay) aspects. More recently, the literature has focused on less tangible aspects, such as cultural, educational, and socioeconomic issues, incorporating the element of acceptability into the notion of health access. The literature also shows that information provides the starting point for access to health, in association with health empowerment and literacy for health care decision-making. The study concludes that improvements in access to health and the guarantee of equity will not be achieved by initiatives focusing on health care systems alone, but rather will depend on intersectoral actions and social and economic policies aimed at eliminating income and education differences.
This study describes the situation of lawsuits concerning the access to medical products by the Health Department of Santa Catarina State (SES/SC), Brazil, during the years of 2003 and 2004. The variables considered were: declared illnesses, medicines demanded, prescription origin, possible alternatives therapeutics in the Santa Catarina State Register of Essential Medicines (Resme), the medicines registration at the National Health Surveillance Agency (Anvisa) and total expenditure. 622 lawsuits were filed. Total expenditure was R$ 11,333,750,00 (Brazilian Reais). Private health care was the source of 56% of the prescriptions. Hepatitis C and rheumatoid arthritis were the most commonly diseases involved. About 40% of requested drugs were on the Resme. 6.2% of required drugs were approved in Brazil after 2000. PEG-Interferon and Infliximab were responsible for 46% of total expenditure. There were still some cases of drugs or indications not registered at Anvisa. These results indicate the need to reassess the list of medicines regularly provided by the SES/SC, and also to improve accessibility to (and information concerning) Programs of medicines distribution. These measures may potentially reduce the number of lawsuits filed against the State.
Income is an important correlate for numerous phenomena in the social sciences. But many surveys collect data with just a single question covering all forms of income. This raises questions over the reliability of the data that are collected. Issues of reliability are heightened when individuals are asked about the household total rather than own income alone. We argue that the large literature on measuring incomes has not devoted enough attention to 'single-question' surveys. We investigate the reliability of single-question data by using the UK Office for National Statistics's Omnibus survey and the British Social Attitudes survey as examples. We compare the distributions of income in these surveys-individual income in the Omnibus and household income in the British Social Attitudes survey-with those in two larger UK surveys that measure income in much greater detail. Distributions compare less well for household income than for individual income. Disaggregation by gender proves fruitful in much of the analysis. We also establish levels of item non-response to the income question in single-question surveys from a wide range of countries. Copyright (c) 2010 Royal Statistical Society.
Recognition of the right to health raises two practical issues: the government's ethical and legal duty to ensure comprehensive health care and citizens' recourse to legal action to guarantee this right. This study focused on lawsuits to demand "essential" medicines, filed at the State Court of Appeals in Rio de Janeiro, Brazil, in 2006. One hundred and eighty-five suits were examined, and the claims were granted in all but three cases. Median times between filing the suit, the injunction, first ruling, and appellate ruling were 7, 239, and 478 days respectively. In 80.6% of the 98 suits in which the specific medicines could be identified, at least one drug did not belong to any publicly funded list of medicines. This could indicate that lawsuits demanding "essential" drugs were motivated not only by problems in procurement, distribution, and dispensing of medicines but also by non-inclusion of medicines on official lists. Most of the medicines demanded through lawsuits were for conditions involving the cardiovascular and nervous systems.
There are increasing numbers of legal suits concerning access to medicines brought against the Rio de Janeiro State Health Department. The situation indicated the need for a study to clarify the underlying issues. A sample of 389 court suits from January 1991 to December 2001 (stratified by year) was used. A cross-sectional design was used to describe and analyze the legal suits in relation to the responsibilities defined under the Unified National Health System (SUS). Results suggest major delays in court decisions. Most suits are filed by the Public Defender's Office for users of the National Health System. The most frequent cases involve medicines for the cardiovascular and nervous systems, many of which involve continuous use. Prescribing practices are institutionalized through the inclusion of the most frequently prescribed drugs in public financing lists, which makes rational drug use difficult to achieve. Municipalities are not fulfilling their responsibility to supply medicines to users, and the State is thus encumbered with these responsibilities. However, the State does not adequately supply medicines to the municipalities. The apparent lack of awareness among both lawyers and clients generates stress between the Executive and Judiciary branches and limits the resources for collective pharmaceutical services.