The Doctor with a Gavel: Keeping the Gates to the Constitutional Right to Health in Brazil

BY MURILO DORION

João da Silva is a 61-year-old Brazilian man with a severe hernia that causes constant pain and nausea. He was diagnosed in March but, because of the pandemic, the local government relocated his doctor to a field hospital, pushed non-emergent surgeries, and left João waiting for his urgent procedure at least up until November when I met him. With no end in sight, this wait could cost him his kidney or even his life.a

João is a user of Brazil’s Unified Healthcare System (SUSb), which was created by the 1988 Constitutional Assembly as part of a plan to revolutionize the country’s exclusionary healthcare model. Although a private option still exists, the vast majority of Brazilians are uninsured and rely almost solely on the free healthcare offered by the SUS.  

BY TORI LU

Legally, this should not be a problem, since Brazilian citizens have a constitutionally guaranteed right to health. Article 196 of the Federal Constitution states:

“Health is everyone’s right and a duty of the State, upheld through social and economic policies that aim at the reduction of the risk of disease and other harm, and at the universal and equitable access to actions and services for its promotion, protection, and recovery.” 1,c

“Health is everyone’s right and a duty of the State, upheld through social and economic policies that aim at the reduction of the risk of disease and other harm, and at the universal and equitable access to actions and services for its promotion, protection, and recovery.” 1,c

This passage gives a broad definition of health under State responsibility.  It very clearly establishes the principle that should guide public policy including, but not limited to, healthcare. However, it is ambiguous whether this right can be demanded in courts. Social rights were a new concept, and there was no consensus on whether such postulates were merely policy guidelines or an irrefusable call to action by the state. 

However, less than a decade after the constitution was proclaimed, courts started to sketch the future of this right. In 1997, Supreme Court minister Celso de Mello determined that the state of Santa Catarina was constitutionally required to cover the costs of stem cell treatment for a patient with Duchenne, a hereditary muscle dystrophy disorder2. This decision was based on the “impossibility to postpone the fulfillment of the political-constitutional duty…of securing the protection of health for all (Constitution, article 196)”d. Later in his short decision, de Mello decided that the individual right to life, crystalized in article 5 of the Constitution, takes precedence over the “financial and secondary interest of the State,”e which the governor of Santa Catarina invoked to justify their government’s incapacity to fund the treatment.

This decision created a recourse within the State to request the immediate protection of the unalienable right to health. In a system that sometimes struggles with delays, shortages, and unreasonable waiting times, such an avenue is crucial to ensure that urgent cases are treated with the haste they require. Since then, this decision has been corroborated and cited as precedent in numerous rulings: between 2014 and 2019, 800,000 right-to-health cases were introduced in courts throughout the country, with access to medications being the most frequent petition3. Access to surgeries – which João would need – represent 17% of such petitions in Distrito Federal 4.

In Brazil, during the peak of the AIDS epidemic in the late 1990s, court rulings based on article 196 were crucial to guaranteeing that HIV-positive individuals had access to the quickly evolving treatment landscape for their illness. Due to the stigmatization of patients and the slow evolution of therapeutic consensus, courts were an important resource for advocacy groups, since judges can act in a counter-majoritarian fashion to protect the rights of the sick, regardless of social taboos, prejudices, or opinions5. This was crucial to securing free access to medications that were not available in the country, some of which are now part of the standard cocktail for the disease6.

The later passing of law 9313/96, which requires HIV drugs to be available in the SUS, was still not enough to secure this right, and patients were forced to appeal to judges to access these drugs. The city of Porto Alegre, for example, claimed in court that budgetary decisions were the sole duty of local governments, as stated in the constitution. Therefore, even if their budget could not fund the HIV treatments, a court could not interfere with the city’s decision without overstepping the attributions of the judicial branch. Nonetheless, a landmark decision in the year 2000 rejected this claim and solidified the thesis that the right to health is a prerogative of the judiciary branch. Thus, Porto Alegre was forced to provide the necessary anti-HIV drugs7 and, more broadly, courts were affirmed as important actors for the proper functioning of the public healthcare system.

Supreme Court of Brazil in session. (CC BY 3.0 BR)

However, the steady increase of health-related petitions since then3 is concerning. As important as the judicialization of health is to remedy momentary injustices, it poses a fundamental threat to the universality of the system, since access to the judicial system is not equitable. A study in the state of Minas Gerais found that over 70% of right-to-health suits were made by private lawyers, and 87.5% of petitions are accompanied by a petition made by a private-sector doctor 8. The ability to pay for lawyers, however, is not the only obstacle to this right: there also is a significant socioeconomic gradient in citizens’ understanding of their rights. A 2016 poll found that only 30% of those earning less than 4 times the minimum wage self-reported understanding the rights contained in the constitution, as opposed to 70% of those who earn over 12 times the minimum wage 9. The marginalized are often not present in the courts that are meant to uphold their rights.

In the 2000 decision on HIV treatment, minister Celso de Mello claimed that forcing the city to provide treatment free-of-charge was a demonstration of solidarity with the lives of those that “have nothing, other than consciousness of their own humanity and essential dignity.” If such a consciousness is unequally distributed along socioeconomic lines, this statement – and the transformation of health into a judicial object – will act as one more driver of exclusivity within the public healthcare system.

The success of the HIV movement did not occur despite these socioeconomic inequities, but rather because of them. Between 1987 and 1998, HIV patients were disproportionately wealthy, and more likely to be students and professionals10. As effective as litigation was in overpowering the implicit homophobia underlying the lackluster governmental response to HIV, it also ensured that public resources went to those who already had funds in their bank accounts. 

Transferring part of the decision-making away from democratically accountable bodies and into the courtroom fundamentally changes the logic of the healthcare system. Popular participation is a core constitutional trait of the SUS1, which cannot be fulfilled when technocratically-selected judges make decisions that impose burdens on the budget. The immediate need of a single patient, which takes precedence in the eyes of the judge, can have destructive effects on the overall public health plans for a given political entity. As much as 3% of the healthcare system expenses are determined in courtrooms 3, and, in 2014, almost 10% of the pharmaceutical budget in Distrito Federal was decided by judges to meet the needs of individual cases rather than that of the overall population12.

This upheaval of the underlying logic of resource allocation creates obstacles for a system that already struggles with long-term planning. Between 2014 and 2017, Brazil went through a penicillin shortage due to a lack of funds and an overreliance on imports13. The consequent syphilis outbreak that ensued affected poorer neighborhoods more severely14 and, as those neighborhoods struggled to control transmission, reinfections became more common and newborns started contracting neurosyphilis in the womb15.  This started a self-fulfilling cycle, as treating downstream complications increased the financial burden on the healthcare system, thus diverting resources away from what was necessary to resolve the situation: buying an almost century-old antibiotic.

A favela settlement in Brazil that lacks a sewage system. (CC BY 3.0 BR)

The emergency-focused prerogative of the judge also hinders the tackling of systemic problems. Lack of proper sewer access is a critical problem in Brazil and, in 2015, 1760 deaths were caused by sanitation-associated diarrheal diseases16. However, it is impossible to frame a case about a lack of sewage treatment in the terms that have been accepted by courts: unlike the HIV case, there is no “impossibility to postpone the fulfillment of the political-constitutional duty,” so the issue is allowed to persist and slowly wither citizens’ health away.

Courts are currently not a viable option to tackle distal causes of disease. Their resource allocation logic favors patients at the end of the disease pathway where the only available treatments are less effective and more expensive. The double-edge of the judicial sword must be wielded carefully: on the one hand, it serves as an essential escape from the Kafkaesque edge cases; but, on the other hand, it can be corrupted into a regressive force that takes from those who need the most. Fortunately, the Supreme Court has attempted to impose limits on judges’ discretionary power in a 2019 decision, imposing criteria such as blocking experimental treatments from being litigated17.  While the political problem of perfecting the SUS is not solved, courts, with their vices, will continue to be an increasingly important part of the healthcare system.

And, for João da Silva, they are his last chance. As his hernia worsens every day, a judge’s ruling could decide whether he gets surgery or spends his last few months waiting for a doctor to return his call.

Murilo Dorión is a sophomore in Silliman. He can be contacted at murilo.dorion@yale.edu.


References:

1. Constituição da República Federativa do Brasil de 1988, Assembleia constituinte, 1 (1988).

2. Medida Cautelar na petição: Pet 1246 SC, Min. Celso de Mello ___ (1997). https://stf.jusbrasil.com.br/jurisprudencia/21028211/medida-cautelar-na-peticao-pet-1246-sc-stf

3. Ferraz, O. L. M. (2019). Para equacionar a judicialização da saúde no Brasil. Revista Direito GV, 15(3).

4. Paixão, A. L. S. da. (2019). Reflexões sobre a judicialização do direito à saúdee suas implicações no SUS. Ciência & Saúde Coletiva, 24, 2167–2172.

5. SANTOS, B. I. de C., & ARTEIRO, R. L. (2011). O princípio contramajoritário como mecanismo regulamentador da soberania. I SIMPÓSIO INTERNACIONAL DE ANÁLISE CRÍTICA DO DIREITO DA UNIVERSIDADE ESTADUAL DO NORTE DO PARANÁ.

6. Vieira, F. S. (2020). Direito à saúde no Brasil: Seus contornos, judicialização e a necessidade da macrojustiça.

7. Agrg. No recurso extraordinário N. 271.286-8 Rio Grande do Sul, Min. Celso de Mello ___ (Supremo Tribunal Federal 2000). http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=AC&docID=335538

8. Campos Neto, O. H., Acurcio, F. de A., Machado, M. A. de Á., Ferré, F., Barbosa, F. L. V., Cherchiglia, M. L., & Andrade, E. I. G. (2012). Médicos, advogados e indústria farmacêutica na judicialização da saúde em Minas Gerais, Brasil. Revista de Saúde Pública, 46, 784–790.

9. Gross, A. F. (2019). Desigualdade de acesso à saúde no Brasil e consequências redistributivas da judicialização.

10. Fonseca, M. G. P., Travassos, C., Bastos, F. I., Silva, N. do V., & Szwarcwald, C. L. (2003). Distribuição social da AIDS no Brasil, segundo participação no mercado de trabalho, ocupação e status sócio-econômico dos casos de 1987 a 1998. Cadernos de Saúde Pública, 19, 1351–1363.

11. Barroso, L. R. (2009). Da falta de efetividade à judicialização excessiva: Direito à saúde, fornecimento gratuito de medicamentos e parâmetros para a atuação judicial.

12. das Chagas, C. P., & dos Santos, F. P. (2018). Efeitos do gasto com a judicialização da saúde no orçamento da Secretaria Estadual de Saúde do Distrito Federal entre 2013 e 2017. CADERNOS IBERO-AMERICANOS DE DIREITO SANITÁRIO, 7(2), 147–172.

13. Nota Informativa no 006/2016—GAB/DDAHV/SVS/MS, (2016) (testimony of MINISTÉRIO DA SAÚDE).

14. Araujo, R. S., Souza, A. S. S. de, & Braga, J. U. (2020). A quem afetou o desabastecimento de penicilina para sífilis no Rio de Janeiro, 2013–2017? Revista de Saúde Pública, 54, 109.

15. Ribeiro, A. D. da C., Dan, C. de S., Santos, A. da S., Croda, J., & Simionatto, S. (2020). Neurosyphilis in Brazilian newborns: A health problem that could be avoided. Revista Do Instituto de Medicina Tropical de São Paulo, 62.

16. GBD Diarrhoeal Diseases Collaborators. (2017). Estimates of global, regional, and national morbidity, mortality, and aetiologies of diarrhoeal diseases: A systematic analysis for the Global Burden of Disease Study 2015. The Lancet. Infectious Diseases, 17(9), 909–948. PubMed. https://doi.org/10.1016/S1473-3099(17)30276-1

17. Repercussão Geral: Recurso Extraordinário 566.471 Rio Grande do Norte, Min. Marco Aurélio ___ (Supreme Federal Court 2010). http://www.stf.jus.br/arquivo/cms/noticiaNoticiaStf/anexo/RE566471.pdf


Footnotes:

[a] Details of this story were modified to preserve the privacy of the individual in question.

[b] In Portuguese, “Sistema Único de Saúde”

[c] “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.”

[d] “[…] impostergabilidade do cumprimento do dever político-constitucional que se impõe ao Poder Público, em todas as dimensões da organização federativa, de assegurar a todos a proteção à saúde (CF, art. 196) […]”[e] “[…] um interesse financeiro e secundário do Estado […]”

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