Is the right to health litigation unique to Brazil or is this a widespread phenomenon in South America which has various kinds of public health systems?
I’m also thinking about comparisons with other middle-income countries. Brazil and South Africa are both kind of social democracies, but also kind of neo-liberalized countries. If this sort of judicialization becomes common in middle-income countries, might it have an impact in poorer countries?
Michael A. Whyte
As you pointed out, the political promise of a right to health has been narrowed to a right to medicines, but this absolutely is i basic care. This is the great issue for global health today. In Uganda, one could conceivably win a lawsuit for treatment access, but there may not be a provider for delivery. Is what is happening in Brazil a model at all for countries like Uganda, where seventy to ninety percent of the health budget is financed externally? Against the backdrop of your case, could we read the role of public-private partnerships as creating barriers for a human right to health approach?
In your paper you noted that the juridical dimension of health is a phenomenon of the South. This is remarkable because we tend to think of the North as hyper-judicialized, but in the US and France you do not hear of people filing lawsuits when they cannot get treatments. Similar to Brazil, South Africa also has a constitutional right to health but the high court enforces it differently, not case by case as in Brazil. If a mother sues for not receiving ARVs for her baby, the whole country gets access. Why don’t individual cases create a collective precedent in Brazil? Could the judiciary not challenge other branches of government to respond with better public policy?
The macro-level comparison of poor versus middle-income countries can occlude significant inequalities within. It is important to differentiate patient groups within countries. It is also important to look comparatively at different juridical structure and cultures. In Chile, you don’t have a right to health, but you have a right to particular treatments the state makes available as the actualization of a social right. What is the length of time that it takes for a court to make a decision? Do certain interventions become obsolete after a certain period? Are courts open to the public for observation?
Right to health litigation is not unique to Brazil. In the wake of democratic constitutions and a new focus on social and economic rights, we have seen myriad ways in which judiciaries have tried to enforce these rights (as in Brazil, Argentina and Chile) or has taken on an activist role (as in Colombia) by issuing special injunctions to guarantee treatment access. Some scholars say that judicialization compensates for legislatures that are unable or unwilling to address the shortcomings of their national health systems. Others see it as an important step for consolidating a culture of rights and improving health care delivery.
As Didier mentioned, in South Africa approaches to socioeconomic rights have emphasized judicial review of government policymaking. In Colombia, in response to escalating lawsuits, a 2008 ruling mandated fundamental changes in the government’s health insurance system and its provision of care. The Argentine Supreme Court has similarly reviewed health policy and regulation, ordering the extension of medical coverage for people with HIV/AIDS. What seems to be distinctive of Brazil is the large number of individual cases combined with courts’ expansive reading of the right to health and unwillingness to directly address policy.
Judicialization seems to require a strong and independent judiciary as well as a culture of rights and a medicinal market. One could also speculate that donor-infused global health initiatives do not necessarily support a right to health approach in poor countries. In general, jurisprudence can help to flesh out the substance of rights and potentially promote change.
Under Brazil’s civil law system, individual cases do not set precedents in the same way that common law systems do. If an individual sues for access to medication, judges cannot turn the lawsuit into a mandate for the widespread public provision of the medication. Collective cases can be opened, but public defenders and activists this as a risky route. They prefer pursuing individual cases as they are more likely to be won and a loss does not set precedent or affect the outcome of other cases. As we observed in the Porto Alegre public defender’s office, the patient’s complex social and medical trajectory disappears in the lawsuit paperwork. The specificity of the case is adapted to a common argument like “risk of death” and there is typically no need for a hearing in court cases. We found cases in which the patient does not even know the lawyer as a patient association is in charge.
Cases can take years to reach a verdict but most people ask for temporary court injunctions and thus receive treatment immediately. The injunction prevents irreparable harm and works as a safety net for the judge’s conscience. Some judges see it as mechanism for immediate justice. Ironically, many treatments are finished by the time a final decision is reached. In reality, patients are trapped in an endless cycle of requesting new court injunctions. As a result, treatments are interrupted, compromising adherence and health outcomes.