Litigation and Fairness

Supporters of litigation as a mechanism to advance access to health care stress that court decisions force the creation of laws and policies to guarantee access to medical services in countries that do not have specific legislation. Some also affirm that, even in countries that have health-related legislation and a public system, litigation forces to improve the system, to expand access, and to create institutions to improve public management. These two arguments must be placed in a context to make more sense because they are two different uses of litigation in distinct health contexts.

The first is the use of litigation in those countries with either no health-related policies and health system, or their policies and system are very limited, that is, many services related to health are not covered (this would be the case of a country with a public system that provides primary care, but it does not cover HIV medication, while its population has many cases of HIV infection). Considering this context, Tamar Ezer and Priti Patel argue that litigation is a strategy to advance public health care, especially in those countries that do not have specific legislation to guarantee their people access to basic health care services. Their argument relies on experiences in African countries that used “strategic litigation as an important tool to develop and enforce legal protections critical to health [2].” This strategy was important to join different social sectors, such as grassroots movements, media and health professionals, to influence policies, law, and practices that advance public health, with particular success in the context of HIV. Ezer and Patel narrow their definition of strategic litigation by using the perspective of litigation as “an intended impact beyond a particular case to influence broader change at the level of law, policy, practice, or social discourse [2].” This broad impact occurs when strategic litigation does not operate alone and isolated in the courts. Strategic litigation needs partners to raise the visibility of the case and thus create a public debate. With visibility, a litigation demonstrates that what an individual is requesting could be a right to a good that everyone should access, benefiting the development of the society. One example of this occurred in the context of HIV in South Africa. “The classic case is Minister of Health v. Treatment Action Campaign, where the Constitutional Court of South Africa required the government to provide medication to prevent mother-to-child transmission of HIV and reversed the government’s policy of denying necessary medication to pregnant HIV-positive women [2].” Similar processes of strategic litigation occurred in other African countries, such as Botswana, Kenya, and Malawi.

We also want to mention a positive impact of strategic litigation in Brazil, a country with an extreme increase of health litigation in recent years. Although Brazil institutionalized a health program for HIV in 1986, this program became a reality with free distribution of medications in 1996, after years of mobilizing the civil society and many lawsuits against the government for accessing HIV medication. This mobilization and strategic litigation were possible because the democratization of the country and the promulgation of the right to health as a constitutional mandate [3]. As a case study, Brazil shows that litigation has functioned to disturb the balance between public budgets and distributive justice in health. However, there are arguments suggesting that litigation in Brazil has also had positive impact. Danielle da Costa L. Borges, for example, argues: “Individual litigation for health care rights in Brazil has pushed forward policy changes that range from strengthening health technology and assessment processes to better health care governance through institutional dialogue between different state actors [3].” Borges demonstrates that the high number of litigations and court decisions in Brazil have forced public authorities from all bodies of government to work in collaboration among themselves and with public health experts. This led to the creation of institutions to help judges, prosecutor’s offices, and attorneys access technical advice regarding health needs and requests. Additionally, these institutions (e.g. CONITEC, NAT) also support public authorities and managers in the administration of the public health system and in the improvement of health services assessments [4]. This collaboration has shaped new forms of governance and decreased the number of litigations in the States that have used these institutions [5]. However, the concern raised here is that these new forms of collaboration and strategies have not improved access to health care services for those individuals who feel marginalized from the system; instead, they only created a kind of bureaucracy that prevents these individuals from bringing lawsuits against their local, state, and federal governments. Consequently, individuals do not access some sort of justice, and the necessity to improve distributive justice is ignored.

Litigation and Distributive Justice: The Case of Brazil

To understand the phenomenon of litigation or judicialization of health care in Brazil, one needs to be aware of the Brazilian health system and the federal laws regulating it [6]. The Constitution of 1988, created after 25 year of dictatorship, states health as a right of all and the duty of the state is to guarantee that all people in Brazilian territory have access to the benefit that this right creates [7]. Following the Constitution, the Leis Orgânicas de Saúde 8.080/90 and 8.142/90 created the Unified Health System (SUS) based on the principles of universality, integrality, and equity, with social-participation, shared funding responsibility, and decentralized management [8, 9]. The universal and integral access to health care in Brazil opens a large avenue for the judicialization of the right to health when public authorities fail to fulfill their obligations. In practical terms, this means that someone who needs a medical service or a medication and is unable to obtain it in the public service would have to fight to access the service through a court decision. The main reason that makes this lawsuit possible – for a person who cannot receive the medical care he/she needs and judges to rule in his/her favor – is the Article 196 of Federal Constitution.

According to the National Council of Justice (CNJ), in 2016 Brazil had more than 300 thousand lawsuits related to the right to health [10, 11]. In a study published by Ribeiro and Hartmann, the main characteristics of the judicialization of the right to health are: “Judicial claims are individual, not collective; Most cases request the provision of drugs through SUS; Claims have a success rate of 90%; [and] Favorable rulings are not based on independent medical assessments, but rather on prescriptions of the plaintiffs’ physicians [12].”

There is an enormous and disorderly growth of legal actions in the last few years in all levels of the Brazilian juridical system. For example, in the last 10 years, only the Supreme Court had more than 3,800 lawsuits to judge [12]. This caused scholars from diverse fields, especially scholars from public health, public policies, and law, to study this phenomenon. The literature shows that the precarious situation of the SUS, which creates problems for people to access healthcare services, is the main cause leading patients and families to bring lawsuits to the courts [11, 13]. It seems obvious that if a sick person needs medical services and the public system cannot meet his/her need, this person will bring a lawsuit to the court to have his/her right to health care guaranteed. Another reason for these lawsuits is to access a kind of health care that the SUS does not provide. This is specifically prevalent in the case of accessing medications. The SUS has a long list of medications that are provided to the population as part of the citizens’ right to health. However, in some cases someone needs a medication that is not provided by the SUS, because it is not yet available in Brazil or because it is very expensive. Studies show that most lawsuits concern a need to obtaining medications, with the majority requesting medications of high cost, including those that are not part of governmental drug formularies [14, 15].

The case of Brazil shows that strategic litigation creates an ethical dilemma between the need of an individual and distributive justice. On the one hand, a lawsuit can guarantee that a person has what he/she needs, and it is his/her right, a constitutional right. On the other hand, scholars who are dedicated to this issue in Brazil seem to agree that the judicialization of the right to health creates an extra-expenditure for public administrations that was not part of their budget. As a result, judicialization has a tremendous impact on the distribution of resources in society [12, 15]. Biehl and Petryna even argue that “although lawsuits secure access for thousands of people, at least temporarily, this judicialization of the right to health generates intensely complex sociomedical realities and significant administrative and fiscal challenges which, officials argue, have the potential to widen inequalities in health care delivery [16].”

Nevertheless, when the political, legislative, and executive powers cannot create policies and implement actions and strategies to fulfill their obligation to guarantee healthcare services for the population, the judiciary power is activated to create access to a fundamental right protected by the Constitution. According to Costa, Motto, and Araújo, the judicialization to the right to health “justifies itself because, in the constitutional and infra-constitutional dimensions of this right in a context of the precarious reality of the Brazilian health, the Judiciary has the responsibility of defining guidelines for offering this public service [14].” And they add: “the Judiciary assumed the role of guaranteeing the exercise, implementation, and concretization of individual and fundamental rights, explicitly stated in the Constitution, when the executive and legislative powers are negligent [14].”

The previous and current administrations have issued policies favoring the private health sector [17]. These neoliberal policies created a process of dismantling the SUS and all its health policies [18] that aimed to guarantee the right to health established by the Brazilian Constitution. With a non-functioning public healthcare system, access to medical services tends to decrease, creating many obstacles for people to access services they need and marginalizing many others from their rights. This situation forces people to use the courts in order to have their rights honored. Consequently, the problem of judicialization of the right to health tends to multiply its cases every day. While health policies do not shift to a direction that promotes the expansion and strengthening of the SUS, courts will fulfill the gap left by the negligence of the legislative and executive powers, creating more challenges for public managers, people in need of healthcare assistance, and the society as a whole, especially for those who are poor and marginalized.