Procedural and Substantive Judicial Review of the Right to Health in Brazil

Ricardo Perlingeiro

doi:10.2139/ssrn.2481539

Abstract

La versione italiana di questo documento e disponibile all'indirizzo: http://ssrn.com/abstract=2481592La version en espanol de este articulo esta disponible en: http://ssrn.com/abstract=2439008A versao em portugues deste artigo esta disponivel em: http://ssrn.com/abstract=2363398This text seeks to identify the objective and subjective aspects of rights to an existential minimum in health care, based on international parameters which, because they are restricted to internal scope of a nation, depend on a constitutional basis and on comprehensible facts, the demonstration of which should be the responsibility of the national administrative authority. Regarding the judicial review of the minimum right to healthcare, this paper points out that it is a serious mistake to try to handle public health conflicts according to the typical judicial principles governing conflicts under private law, because that distorts the public health system, with judicial orders that depart from the universal access to health care and that are often impossible to comply with. The article concludes that the judicial review of administrative authorities in matters involving the right to health necessarily requires simultaneous judicial review of the corresponding administrative procedures.

Highlights

This text seeks to identify the objective and subjective aspects of rights to an existential minimum in health care, based on international parameters which, because they are restricted to the internal scope of a nation, depend on a constitutional basis and on comprehensible facts, the demonstration of which should be the responsibility of the national administrative authority
Regarding the judicial review of the minimum right to healthcare, this paper points out that it is a serious mistake to try to handle public health conflicts according to the typical judicial principles governing conflicts under private law, because that distorts the public health system, with judicial orders that depart from the universal access to health care and that are often impossible to comply with
The article concludes that the judicial review of administrative authorities in matters involving the right to health necessarily requires simultaneous judicial review of the corresponding administrative procedures

Summary

Judicialização da saúde

Médicos denunciam abusos da Justiça do RJ, Consultor Jurídico (Jun. 8, 2013), (accessed Aug. 5, 2015). / Does the Vorbehalt des Möglichen (the Proviso of the Possible) Limit Judicial Intervention in Social Public Policies?, 1(2) Revista de Direito Administrativo Contemporâneo (ReDAC) (2013), available at (accessed Aug. 5, 2015) [hereinafter Perlingeiro, È a reserva do possível um limite]. According to the Committee on Economic, Social and Cultural Rights [hereinafter CESCR], Art. 12 of the ICESCR requires States to adopt appropriate legislative, administrative, budgetary, judicial or other steps to ensure the full realization of the right to health. Regarding substantive rights to health, according to the CESCR, despite any restrictions on resources, certain obligations have an immediate effect, such as the duty to guarantee at least a minimum level of access to the essential material elements of the right to health, like supplying essential medicines as well as child and maternal health services.. Restrictions to adjust the existential minimum to the actual situation in the country in question should be accompanied by a clear statement of justifications by the public authority, which is responsible for the task of explaining the other public expenditures transparently and, above all, understandably, using a reliable and consistent method of calculation.

Judicial Review of the Right to an Existential Minimum

41 See generally

Final Considerations