Reflections on the judicialization of the right to health and its implications in the SUS.

André Luís Soares Da Paixão

doi:10.1590/1413-81232018246.08212019

Abstract

This paper presents the issue of judicialization of the right to health in Brazil. Data from the National Council of Justice evidence a substantial increase in the number of lawsuits concerning the right to health. We emphasize that the national doctrine exhaustively discusses ways to make the authority more effective, but it does not, as a general rule, discuss the economic aspect of health judicialization. Using the concept of opportunity cost extracted from economics science, it is shown that the judge, by deferring the lawsuit formulated by the plaintiff, automatically forces the Executive Branch to reduce the scope of other policies to generate resources to meet the court order. In specific contexts, this setting ends up favoring individual rights at the expense of the collective rights of SUS users, in violation of the principle of isonomy and efficiency. Finally, the case of the judicialization promoted by the hemophiliac patients in the Federal District is shown as a way of evidencing, at the factual level, the consequences of judicialization in the SUS policies.

Highlights

The relationship between health and law gained prominence in Brazil with the 1988 Federal Constitution which stated in art. 196 that health is the right of all and the duty of the State, guaranteed by social and economic policies aimed at reducing the risk of disease and other health problems, and the universal and equal access to actions and services for their promotion, protection, and recovery[1]
The National Council of Justice itself recognizes that the issue requires attention and conveys, on its website, a report[4] pointing out that the judicialization of health is a matter of concern to the body, including justifying the establishment and maintenance of state health committees and the realization of public hearings to discuss the issue
The Judiciary decides on the right to health lawsuits on judicial cognizance and without considering the opportunity costs related to its decision

Summary

Introduction

The relationship between health and law gained prominence in Brazil with the 1988 Federal Constitution which stated in art. 196 that health is the right of all and the duty of the State, guaranteed by social and economic policies aimed at reducing the risk of disease and other health problems, and the universal and equal access to actions and services for their promotion, protection, and recovery[1]. The National Council of Justice itself recognizes that the issue requires attention and conveys, on its website, a report[4] pointing out that the judicialization of health is a matter of concern to the body, including justifying the establishment and maintenance of state health committees and the realization of public hearings to discuss the issue. Notwithstanding the importance of such debates, one must verticalize the analysis and discuss what is meant by the universal right to health and what are the costs that each understanding generates. This is because, in a scenario of scarce resources, one must consider the existing alternatives and adopt the one that best safeguards the public interest.

The right to health and costs inherent to its implementation

Hospital medical treatment

Medical visit

Findings

Final considerations