The Debatable Role of Courts in Brazil's Health Care System: Does Litigation Harm or Help?

The United Nations Committee on Economic, Social and Cultural Rights, General Comment 14 (2000), commenting on Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Translation from the original, in Portuguese (Brazilian Federal Constitution, Art. 196. A saúde é direito de todos e dever do Estado, garantido mediante políticas sociais e econômicas que visem à redução do risco de doença e de outros agravos e ao acesso universal e igualitário às ações e serviços para sua promoção, proteção e recuperação).

Unlike other Constitutions, the Brazilian one does not say anything about progressive realization of this right to health.

See e.g. Yamin A. E. and Gloppen S. , eds., Litigating Health Rights: Can Courts Bring more Justice to Health? (Cambridge: Harvard University Press, 2011): at 1.

Wilsford D. , “Path Dependency, or Why History Makes It Difficult but Not Impossible to Reform Health Care Systems in a Big Way,” Journal of Public Policy 14, no. 3 (1994): 251–283; Mayes R. , Universal Coverage: The Elusive Quest for National Health Insurance (Ann Arbor: University of Michigan Press, 2005); Bevan G. and Robinson R. , “The Interplay between Economic and Political Logics: Path Dependency in Health Care in England,” Journal of Health Politics Policy and Law 30, nos. 1–2 (2005): 53–78. See also Haeder S. F. , “Beyond Path Dependence: Explaining Healthcare Reform and Its Consequences,” Policy Studies Journal 40, no. 11 (2012): 65–86 (discussing other obstacles to change, in addition to path dependence); Brown L. D. Cacace M. Frisina L. , and Sparer M. S. (Special Issue Editor), “Beyond Path Dependency: Explaining Health Care System Change,” Journal of Health Politics, Policy and Law 35, no. 4 (2010) (presenting a series of articles that debate advantages and disadvantages of describing health care reform from a path dependence perspective).

Michael Trebilcock and I have argued in a previous paper that institutional reform during normal times (i.e. when there are no major crises, natural catastrophes, or violent conflicts) is likely to face significant obstacles due to path dependence. See Prado M. M. and Trebilcock M. , “Path Dependence, Development and the Dynamics of Institutional Reforms,” University of Toronto Law Journal 59, no. 3 (2009): 341–380. For further discussions on obstacles to institutional reforms due to path dependence, see also Pierson P. , “Increasing Returns, Path Dependence, and the Study of Politics,” The American Political Science Review 94, no. 2 (2000): 251–267; Pierson P. , Politics in Time: History, Institutions, and Social Analysis (New Jersey: Princeton University Press, 2004); North D. C. , Institutions, Institutional Change and Economic Performance (New York: Cambridge University Press, 1990).

Hoffmann F. and Bentes F. , “Accountability and Social and Economic Rights in Brazil,” in Gauri V. and Brinks D. , eds., Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (New York: Cambridge University Press, 2010): At 104 and 122; Ventura M. Simas L. Pepe V. L. E. Schramm F. R. , “Judicialização da Saúde, Acesso à Justiça e a Efetividade do Direito à Saúde,” Physis 20, no. 1 (2010): 77–100; Andrade E. Machado C. D. Faleiros D. R. Szuster D. A. C. Guerra A. A. Júnior Silva G. D. , “A Judicialização da Saúde e a Política Nacional de Assistência Farmacêutica no Brasil: Gestão da Clínica e Medicalização da Justiça,” Revista Médica de Minas Gerais 18, no. 4-S4 (2008): 46–50. See also Mastad O. Rakner L. and Ferraz O. M. , “Assessing the Impact of Health Rights Litigation: A Comparative Analysis of Argentina, Brazil, Colombia, Costa Rica, India and South Africa,” in Yamin and Gloppen , eds, supra note 4, at 282 (indicating that individualized claims are the trend in Latin America. They represent 97 to 99% of right to health litigation in the region).

Ferraz O. L. M. , “The Right to Health in the Courts of Brazil: Worsening Health Inequities?” Health and Human Rights Journal 11, no. 2 (2009): 33–45. See also Hoffmann and Bentes , id at 107.

Ferraz , supra note 8, at 40 (ascribing the recent increase in the number of claims to the high success rates in this kind of litigation).

Messeder A. Osorio-De-Castro C. , and Luiza V. , “Mandados Judiciais como Ferramenta para Garantia do Acesso a Medicamentos no Setor Público: A Experiência do Estado do Rio de Janeiro, Brasil,” Cadernos de Saúde Pública 21, no. 2 (2005): 525–534.

Borges D. , Uma Análise das Ações Judiciais para o Fornecimento de Medicamentos no Mbito do SUS: O Caso do Estado do Rio de Janeiro no Ano de 2005, Master's Thesis (Fiocruz, 2007), available at <http://bvssp.icict.fiocruz.br/lildbi/docsonline/3/3/1233-borgesdclm.pdf> (last visited February 3, 2013).

Hoffmann and Bentes , supra note 7.

Constantino L. and Freitas S. , ‘Saúde em Xeque,’ Paulo Folha de S. , August 1, 2005, available at <http://sistemas.aids.gov.br/imprensa/Noticias.asp?NOTCod=66473> (last visited February 3, 2013.).

Ferraz , supra note 8, at 33 (describing this expansive interpretation “as an entitlement of individuals to the satisfaction of all their health needs with the most advanced treatment available, irrespective of its cost”).

Ferraz , supra note 8, at 35. But see Hoffmann and Bentes , supra note 7, at 126 (claiming that courts tend to decide provision of medical care cases based on the right to life and not the right to health).

Id. (Arguing that the understanding that the right to health will entitle an individual to judicial remedies is only popular among young judges and at the trial level. A traditional strand of jurisprudence, hegemonic in the older judiciary, sees the right to health as a programmatic right: too vague to be directly justiceable).

Id., at 126 (Indicating that higher courts adopt the view that social rights fall under the “progressive realization precept: the courts apply a viability reservation (reserva de possibilidade) in the context of existing economic and political realities.”).

Hoffmann and Bentes , supra note 7, at 106.

In the Brazilian legal system there is no system of precedent per se resulting in the need for every single person who wants a similar benefit to bring his or her own claim to the court. This partially explains the large volume of litigation, with multiple cases often dealing with the same set of benefits or the same kind of treatment.

Ferraz , supra note 8, at 40 (arguing that the wealthy people are the ones using litigation, as suggested by the fact that in the state of São Paulo, 74% of health services litigations were conducted by private lawyers; in the state of Santa Catarina this number was 59%).

Hoffmann and Bentes , supra note 7, at 111.

Id. See also Biehl J. Amon J. J. Socal M. P. , and Petryna A. , “Between the Court and the Clinic: Lawsuits for Medicines and the Right to Health in Brazil,” Health and Human Rights Journal 14, no. 1 (June 2012): 1–17.

Hoffmann and Bentes , supra note 7, at 114.

Diniz D. Medeiros M. and Schwartz I. , “A Tese da Judicialização da Saúde Pelas Elites: Os Medicamentos para Mucopolissacaridose,” Ciência e Saúde Coletiva (forthcoming).

Flood C. M. and Chen Y.Y. B. , “Charter Rights & Health Care Funding: A Typology of Canadian Health Rights Litigation,” Annals of Health Law 19, no. 3 (2010): 479–526, at note 10 (defining progressive and regressive distribution of health care resources).

Vieira F. S. and Zucchi P. , “Distorções Causadas pelas Ações Judiciais à Política de Medicamentos no Brasil,” Revista de Saúde Pública 41, no. 2 (2007): 214–222. Hoffmann and Bentes , supra note 7 at 116.

Ferraz , supra note 8.

Hoffmann and Bentes , supra note 7, at 114.

Id., at 115.

See Petryna A. , When Experiments Travel: Clinical Trials and the Global Search for Human Subjects (Princeton, NJ: Princeton University Press, 2009). (Showing how pharmaceutical companies have covered litigation costs for sick patients suffering from rare diseases to secure access to costly treatments through the courts. In some cases, courts grant access to drugs that were not approved by Brazilian regulatory agency for the health care sector (ANVISA). In other cases, courts have required the state to pay for expensive experimental drugs, using fund from the Brazilian public health care sector to cover the costs with clinical trials to test the product's efficacy).

For a detailed overview of the evolution of inequality in Brazil between 1992 and 2009, see Neri M. , “The Decade of Falling Income Inequality and Formal Employment Generation in Brazil,” in Tackling Inequalities in Brazil, China, India and South Africa: The Role of Labour Market and Social Policies (OECD Publishing, 2010): 57–108, available at <www.oecd.org/dataoecd/16/45/45284971.pdf> (last visited February 3, 2013.).

Flood and Chen , supra note 25, at 482.

Mastad Rakner , and Ferraz , supra note 7; Bergallo P. , “Courts and Right to Health: Achieving Fairness Despite “Routinization” in Individual Coverage Cases,” in Yamin and Gloppen , eds., supra note 4, at 43–75; Rodríguez-Garavito C. , Assessing the Impact and Promoting the Implementation of Structural Judgment: A Comparative Case Study of ESCR Rulings in Colombia (Bogotá: ESCR-Net, 2010), available at <http://www.escr-net.org/usr_doc> (last visited February 3, 2013). See also Rodríguez-Garavito C. and Franco D. R. , Cortes y Cambio Social: Como la Corte Constitucional transformó el desplazamiento forzado en Colombia (Bogotá: Dejusticia, 2010).

Id.

This may be true for all types of litigation, but right to health litigation raises special concerns about the ability of judges, instead of health experts, to be making some of these decisions, especially those that impact on allocation of scarce health resources.

Auton v. British Columbia (Attorney General), [2004] 3 S.C.R. 657 [Auton], para.1, 2004 SCC 78 (Can.).

Flood and Chen , supra note 25, at 512.

Mastad Rakner and Ferraz , supra note 7, at note 7.

See supra note 7, and accompanying text.

For a discussion about these features, see Yamin and Gloppen , supra note 4.

This NGO activism has not spread to litigation of other health care needs in Brazil. Private attorneys, Legal Aid Department (Defensoria Pública) and the Public Prosecutor's Office (Ministério Público) deal with most of the cases involving the right to health. One possible explanation for this is the “crowding out effect” in legal culture and the institutional arrangements that set incentives favouring the Public Prosecutor's Office. See Hoffmann and Bentes , supra note 7, at 115. One may ask, however, if advocacy by NGOs is preferable, as they also face equity issues. See, e.g., Hoffman S. J. , “Mitigating Inequalities of Influence among States in Global Decision Making,” Global Policy (Forthcoming 2012) available at <http://onlinelibrary.wiley.com/doi/10.1111/j.1758-5899.2011.00153.x/abstract> (last visited February 6, 2013).

Parker R. , “Construindo os Alicerces para a Resposta ao HIV/AIDS no Brasil: O Desenvolvimento de Políticas sobre o HIV/AIDS, 1982–1996,” Divulgação em Saúde Para Debate 27 (2003): 8–49.

Hoffmann and Bentes , supra note 7, at 114.

Cohen J. C. and Lybecker K. M. , “AIDS Policy and Pharmaceutical Patents: Brazil's Strategy to Safeguard Public Health,” The World Economy 28, no. 2 (2005): 211–230.

The Economist, “A Conflict of Goals: Helping Patients, or Science? Brazil's AIDS Programme,” May 10 2007, São Paulo.

Hoffmann and Bentes , supra note 7, at 137.

Diniz D. Medeiros M. and Schwartz I. , “Consequências da Judicialização das Políticas de Saúde: Custos de Medicamentos Para as Mucopolissacaridoses,” Cadernos de Saúde Pública 28, no. 3 (2012): 479–489, available at <http://www.scielo.br/scielo.php?script=sci_arttext&pid=S0102-311X2012000300008&lng=en&tlng=pt> (last visited February 6, 2013).

Bergallo , supra note 32, at 63 (Discussing a useful framework called “routinization,” which captures the dynamic where litigation becomes a routine and tries to map possible outcomes. Despite being useful, the framework does not offer tools that can potentially explain the government's response to litigation, or lack of it).

Mastad Rakner and Ferraz , supra note 7, at 287.

The expression is used by Mastad Rakner and Ferraz , id. at 276 in the context of the right to health litigation, alluding to the seminal article Mnookin R. H. and Kornhauser L. , “Bargaining in the Shadow of the Law: The Case of Divorce,” The Yale Law Journal 88, no. 5 (1979): 950–997.

Hoffmann and Bentes , supra note 7. The equivalent of the U.S. class action in Brazil is called ação coletiva, but it was found to be virtually absent in the authors' study about litigation of the right to health and education in Brazil.

See supra note 18 and accompanying text.

Mastad Rakner and Ferraz , supra note 7, at 284 (Arguing that the possible reasons for these could be: (i) unlike private lawyers, public prosecutors lack the time, resources and incentives to follow up on cases to seek enforcement; and (ii) courts might be more prone to issue injunctions and orders for immediate enforcement in simple individual cases, accompanied by harsh punishment, which has included imprisonment of government officials in Brazil.) It is interesting to note that this is a common pattern in Latin America in general, not only in Brazil.

For a discussion about the concept of “institution” in the academic literature, and a definition useful for legal scholars, see Prado and Trebilcock , supra note 6.

The concept of institutional change used here is very similar to the concept of structural change used in the specialized literature. For a discussion of the concept of structural change, an overview of the literature discussing this type of change and analysis of how litigation can promote such change, see Brinks D. M. and Forbath W. , “Commentary: Social and Economic Rights in Latin America: Constitutional Courts and the Prospects for Pro-poor Interventions,” Texas Law Review 89, no. 7 (2011): 1943–1956.

For a detailed discussion of the decision, see Yamin A. E. Parra-Vera O. , and Gianella C. , “Judicial Protection of the Right to Health: An Elusive Promise?” in Yamin and Gloppen , eds., supra note 4, 103–131.

Id. at 127 (describing the T-760/08 decision as “the most sweeping judgment regarding health rights issued by any court in the world to date”).

Bergallo , supra note 33.

Brinks and Forbath , supra note 55.

See Forman L. and Singh J. A. , “The Role of Rights and Litigation in Assuring More Equitable Access to Health Care in South Africa,” in Flood C. and Gross A. , eds., The Right to Health at the Public/Private Divide: A Global Comparative Study (Forthcoming, Cambridge University Press).

Brinks and Forbath , supra note 54, at 1954.

For a detailed discussion, see Chen and Flood , supra note 24, at 503–509.

Id.

It may be noted that the volume of litigation seems to be much higher in Colombia than in Brazil. According to a 2010 database, Colombia was having around 150,000 cases per year, whereas Brazil had 40,000 cases per year. The per capita numbers are also different, with Colombia at 3,289 cases per capita and Brazil with 206 cases per capita. Mastad, Rakner and Ferraz, supra note 7, at 282. It is important to consider, however, that the data on litigation in Brazil is patchy and cannot be considered as comprehensive as the Colombian data.

Some of the oral presentations at the public audience are available at <http://www.agu.gov.br/sistemas/site/TemplateTexto.aspx?idConteudo=94850&id_site=722&aberto=&fechado> (last visited February 6, 2013). The documents submitted to the court by civil society organizations in connection with the public audience are available at <http://www.stf.jus.br/portal/cms/verTexto.asp?servico=processoAudienciaPublicaSaude&pagina=Artigo> (last visited February 6, 2013).

Yamin Parra-Vera , and Gianella , supra note 55, 103–131, at 123.

Ferraz , in Yamin and Gloppen , supra note 4, at 95.

Id. at 95 (indicating that there is no conclusive data regarding how representative this type of litigation is: scholars claim that the majority of litigation relates primarily to drugs not included in the official list, whereas others have found data to support the opposite conclusion, i.e. the majority of litigation involves drugs included in the list).

Id. at note 24 (based on an interview with a governmental official).

For a discussion of these difficulties, see Mastad Rakner , and Ferraz , supra note 7.

Yamin Parra-Vera , and Gianella supra note 55, at 120–121, 126.

Rodríguez-Garavito , supra note 33; Rodríguez-Garavito and Franco , supra note 33.

Rodríguez-Garavito , id.

Rodríguez-Garavito C. , “Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America,” Texas Law Review 89 (2011): 1669–1698. In this article, Rodríguez-Garavito also discusses how different kinds of judicial remedies may account for such effects. For the latter, he distinguishes between: “strong” and “weak” judicially-pronounced rights; detailed, managerial or juristocratic decrees and open-ended, “dialogical” or collaborative ones; and the period of judicial monitoring of the implementation of decrees (extended, short, or non-existent).

As described by Lamprea, “the 1991 Constituent Assembly introduced the Tutela action, an informal and expedited injunction that allows any citizen to seek judicial protection when their basic rights are threatened by the State or by a third party, which opened the door to increased health rights litigation. According to Art. 85 of the 1991 Constitution, following the filing of a Tutela injunction by a plaintiff the judge or Court assigned to the case has less than ten days to hand down a final decision on the matter. Unlike ordinary judicial cases, the Tutela eliminated most of the usual legal formalities and introduced a fast-track judicial procedure that has rendered lawyers unessential.” Lamprea E. , “Colombia's Right to Health Litigation in a Context of Health Care Reform,” in Flood and Gross , eds., supra note 60, at 9 (manuscript).

Yamin Parra-Vera and Gianella , supra note 56, at 118.

Id. at 113. See also, Lamprea supra note 75, at 16–17 (showing that the litigation in courts has decreased, but the cases did not disappear. Instead, they were funneled to administrative bodies called Scientific Technical Committees [Comités Técnicos Científicos]).

Brazilian Supreme Court (S.T.F.), STA 175 AgR/CE-CEARÁ, Relator: Min. Gilmar Mendes, 17.3.2010, Diário da Justiça [D.J.], 30.4.2010, 4.

For a discussion about other areas and how courts have impacted on public policy in Brazil, see Taylor M. , Judging Policy: Courts and Policy Reform in Democratic Brazil (Stanford University Press, 2008).

Brinks and Forbath , supra note 54.

See, e.g., Biehl , supra note 22.

See, e.g., Segatto C. , ‘O paciente de R$ 800 mil’, Revista Época, March 23, 2012, available at <http://revistaepoca.globo.com/tempo/noticia/2012/03/o-paciente-de-r-800-mil.html> (last visited February 6, 2013).