Litigation and Health Reform in Brazil: Balancing Access to Health with the Creation of a Durable and Equitable Health System

By John Thorpe

Good health is a precondition for the enjoyment of most of the rights we cherish.  A young woman crippled by opportunistic HIV/AIDS infections faces significant challenges to vote, let alone to contest barriers to vote.  Good health ensures that we can work and work productively.  It also promotes early childhood education and gives children an opportunity to perform at their highest potential.  As The Global Network has noted, the broad negative social impact that neglected tropical diseases have on education, economic development, and women’s empowerment is illustrative of the fundamental nature of good health. 

Recognizing that the right to health is a pillar of individual and collective dignity, the international community enshrined it in article 12 of the International Covenant on Economic, Social, and Cultural Rights.  Yet historically, the right has lacked broad institutional support and reliable mechanisms for enforcement.  Recent codifications of the right to health into national constitutions are changing this by, among other things, opening up the possibility of litigation for individuals seeking access to care and medication.  Brazil serves as a good example.  Since codifying the right to health in its constitution, Brazil has witnessed a veritable explosion in health related litigation (in Brazil’s Rio Grande do Sul state, health related lawsuits filed against the state have increased over 1000% from 2002-2009).  Although this trend in litigation is raising a number of questions regarding sustainability and equity, one thing is clear: litigation is moving the public discourse from debate over the right to health’s epistemological validity in the rights framework to inquiries into pragmatic methods and optimal institutional structures to ensure its enjoyment in practice.  Litigation, while not a permanent answer to health inequity and in need of reform, is providing poor Brazilians with access to necessary medication and with an effective tool to claim their right to health where current distributional structures are failing. 

Article 196 of the Brazilian Constitution states "Health is the right of all persons and the duty of the state… and shall be guaranteed by means of social and economic policies aimed at… universal and equal access to actions and services…". New studies in Brazil are beginning to analyze the effects of health rights litigation based on this constitutional provision.  The litigation trend has been called the “judicialization of the right to health.” 

Early studies of judicialization raised warnings that litigation would likely exclude the poorest members of Brazilian society who face barriers to access the legal system and would also exacerbate existing health inequities.  However, a recent study, focusing on Rio Grande do Sul, found that low-income individuals used litigation as an important means to access medication.  53% of plaintiffs in the study who reported their income earned less than the monthly minimum wage.  Further, public defenders represented plaintiffs in 59% of the cases (as compared with private attorneys representing a majority of cases in Sao Paulo).

The success rate of plaintiffs in Rio Grande do Sul is representative of the broad judicial support for the constitutional right to health.   According to the Health and Human Rights International Journal, in over 90% of cases, “district judges granted plaintiffs an immediate injunction, in full, for access to medicines…”   In the 92% of cases where plaintiffs requested exemption from legal fees, district judges rewarded the requests 91% of the time.  At least in Rio Grande do Sul, poor populations are utilizing litigation to try to access medications.  

The recent health litigation trend in Brazil grew out of a similar, successful movement for HIV/AIDS patients.  In the 1990s, the HIV/AIDS movement turned to the courts once it became clear “that the speed of innovation in HIV/AIDS diagnosis and treatment was not matched by the integration of new technologies in the state’s health program.”  After Brazil’s highest court affirmed the right to health for HIV/AIDS patients, new doors opened for claimants suffering from a broad range of afflictions, pavingthe road for the present litigation trend.

Although litigation provides a means for individuals to access needed medications, the judicialization of health rights in Brazil is also imposing significant costs on Brazil’s Unified Health System (SUS).  Based on a recent survey of Brazilian health care, the Economist argued that court orders granting patients’ demands for medicines are causing the SUS to get “poor value for the money it spends on drugs.”  One problem area identified was litigation requests under the constitution for expensive medication.  There are worries that this leads to limited individual gains at the expense of larger health equity and siphons money from important public health programs.  Judicial rulings (often enforced through threats of imprisonment for municipal health managers) are disrupting rational prescription practices. 

Sustainable distribution of resources to priority health programs is an important social goal and a strong reason to establish limits regarding the extent to which court orders can require municipal health programs to provide expensive “off-list” medications.  However, litigation avenues should not be closed entirely. In the Rio Grande do Sul study, even “on-list” medications were still not reaching poor individuals. The study found that a majority of patients in Rio Grande do Sul sued for both low-cost, on-list medicines as well as high-cost, off-list medicines.  Overall, two-thirds of the medicines requested were on pharmaceutical distribution lists.  The study also reported that only about one-quarter of the lawsuits exclusively demanded “high-cost exceptional medicines.”  The authors of the study argue that the data exposes significant problems in Brazil’s medicinal distribution system, particularly regarding delivery of on-list medicines and proper updating of pharmaceutical lists.  Further, at least in some cases, medicines are still failing to reach their beneficiaries even after a judicial ruling.

Renilde, a HIV-positive fifty-year old woman living in a Rio Grande do Sul shantytown, is an exemplary case.  Since being diagnosed with HIV in 2002, Renilde has not had any trouble accessing her free HIV/AIDS treatment at her local health post.  However, in 2009, after being unable to adequately perform her duties as a custodian because of lack of breath, Renilde lost her job.  Renilde’s doctor diagnosed her with pulmonary hypertension and prescribed her medication that was not offered at that time in the public health care system and cost around $1000 a month.  The doctor advised Renilde to go to the public defender’s office and sue the state for the medications.  Renilde won on appeal, but was still waiting to receive medication at the time the Rio Grande do Sul study was published.

Although judicialization is creating costs that may be unsustainable and is imperfect, the Brazilian judiciary’s recognition and enforcement of the right to health is adding an impetus to reform distributional problems by threatening real consequences.  The challenge, it seems, is to find an appropriate balance between fostering the equitable growth of health systems in Brazil and keeping the courts open as a place of last resort for patients seeking to claim and realize their right to health. Many patients in Rio Grande do Sul turned to the courts for chronic and advanced diseases only after exhausting all other available options.  Inherent in the idea of dignity and human rights is the empowerment of individuals to stand up to injustice, whether that injustice is direct, structural, or cultural.  Courts in Brazil should remain an avenue of last resort for Brazilians, especially the poor, to act on their health rights claims.