Recognizing the public right to healthcare: The approach of Brazilian courts

Abstract

This paper considers aspects of the judicialization of health care policy in Brazil. It discusses the issue in the context of the separation of the powers of government, judicial protection of the public right to healthcare, the so-called “technical administrative discretionary prerogatives,” and finally, the need for a budget to provide for the efficacy of court decisions. To further the analysis of Brazil's treatment of the judicialization of politics this paper also compares Brazil's experience with the experience of other countries witnessing the same phenomenon.

Resumo

O texto deste artigo considera aspectos diversos da judicialização das políticas de saúde no Brasil, tais como o princípio da tripartição de poderes, a tutela judicial do direito público à saúde, o controle jurisdicional das denominadas «discricionariedades administrativas técnicas» e, finalmente, a necessidade de lastro orçamentário para suportar a eficácia das decisões judiciais. Para aprofundar a análise da judicialização das políticas no Brasil, o texto inclui uma comparação entre a experiência brasileira e a de outros países que testemunham o mesmo fenômeno.

In Brazil, the topic of the “judicialization of healthcare policy” continues fomenting debates in the three branches of power and naturally provokes interest of judges’ academies and schools.^1,a The recent National Council of Justice (CNJ) Recommendation no. 31, of 30 March 2010, on healthcare assistance, and CNJ Resolution no. 107, of 6 April 2010, that establishes the National Judiciary Forum for the monitoring and settlement of healthcare assistance claims is clear evidence of the importance and timeliness of the subject in Brazilian society.^2,b The current significance of the topic of judicialization of healthcare policy is manifested in the joint academic pursuit undertaken by the Fluminense Federal University, Judiciary Sciences Centre, Nupej, and University of Paris Descartes, Institute of Health and Law, IDS, and the National Health School of the Universidade Nova (New University) of Lisbon. Federal Senate Bill no. 338, of 2007, further evidences the primacy of the topic by amending law no. 8.80/1990 that deals with the supply of therapeutic procedures and distribution of medication by the Sistema Único de Saúde (Single Healthcare System).^3,c

The judicialization of healthcare policy is not unique to Brazil. It is also found in a limited degree in the United States and to the same extent as in Brazil in other Latin American countries such as Uruguay, Argentina, Chile, Paraguay, Colombia, Ecuador, Venezuela, Bolivia, Peru and Mexico.^4,d

Strictly on the procedural level, the expression “judicialization of healthcare policy” is present whenever Government acts or omissions give rise to legal action, brought against a public healthcare authority regarding healthcare policy, that asserts the right to protection of healthcare in light of unconstitutionality or violation of current legislation.^5,6,e

A typical example of the judicialization of healthcare policy in Brazilian courts arises when actions are filed, individually or collectively, against a Public Healthcare Authority for the supply of medicines not incorporated into the SUS. In fact, although the SUS is a universal, egalitarian, free and comprehensive system, certain medical treatments and products may not be made available to the general public. This lack of availability can be attributed generally to either of the following two situations: (1) the lack of public healthcare policies (laws, rules or administrative proceedings) that support or coincide with the patient's claims; or (2) the Public Healthcare Authority's failure to comply with the existing policies, often due to the lack of a clear definition of the division of authority among federal entities. Strictly speaking, the judicialization of healthcare policy is found only in the first situation, in which healthcare policies are lacking and the existing policies somehow frustrate the citizens’ demands for medication necessary to protect their health.^f

To ensure adequate examination of the procedural aspects of the judicialization of healthcare policy, especially from a comparative perspective, this study will be limited to court cases related to healthcare policies established by administrative acts or rules. That is to say, this study will focus on procedural law in cases relevant to public healthcare authorities, known in Brazil as “public procedural law”, in the United States as a subset of administrative law concerned with “administrative procedure,” and in Europe and the rest of Latin America as “administrative jurisdiction” or “administrative justice.”^7,8 The scope of this analysis does not include judicial protection extended to healthcare policies derived directly from law, since such protection depends more on the principles of constitutional jurisdiction. Additionally, and most importantly, this study will not focus on judicial protection derived directly from law because the majority of the litigation over public healthcare rights in Brazil do not involve questions of constitutionality – whether by act or omission – of healthcare laws.^g

Is it necessary to require specific judicial protection for the public right to healthcare protection? Is there a need for specialized public healthcare courts and procedural rules based on the German model with its social law jurisdiction and procedural legislation?^9–11,h Is it not enough to have the existing courts and procedural rules applicable to public disputes in general, as is the case in both Brazil and the United States?

Answers to these questions can be pursued by examining the procedural questions the Government most often raises in court. The arguments are mainly based on the juxtaposition of individual disputes involving the right to healthcare protection, on the one hand, and the duties of the general public, on the other. In the same vein, it will be helpful to examine the basic principles of jurisdiction of the courts over administrative authorities, which, in the healthcare cases, should also be guided by the concept of effective judicial protection.

Should the Judiciary get involved in making Government health policy?

As one example of the abundant Brazilian case law on the subject, it is worth mentioning the case of a patient with physical impairments who asked to be supplied an orthotic device necessary for the treatment of a post-polio syndrome. The Public Healthcare Authority, in one of its defenses, alleged that there was no obligation to supply a medical device not included in a standardized list in official programs. Their argument was as follows:

• The Judiciary, hearing a request for medication, implies an infringement of Art. 2 of the Constitution (“The Legislative, the Executive, and the Judicial, independent and harmonious among themselves, are the powers of the Union”) to the extent that it (the Judiciary) would be exercising a function specifically designated to the Executive, by redirecting resources from the specific public policies in existence to an individual case, regardless of the seriousness of the case.¹²

Still, the court decided that:

• since healthcare is a social right, it should be taken care of by the state, through public policies, especially the SUS (Single Healthcare System). According to the Constitution of 1988, such public policies constitute a set of governmental actions. It is therefore a right of an eminently constitutional nature, whose obligatory provider (of the right) must be the state, which has the duty of developing the necessary programs so that, together, the three public entities (branches of government) will achieve the higher purpose, which is giving effect to that right. Thus, for the primary purpose of ensuring the effectiveness of that right, the Federal Constitution distributes to the (Brazilian) Union, the States, the Federal District and Municipalities the responsibility for such actions and services.¹²

In another request to be supplied a portable insulin pump and all the accessories necessary for its use, the administrative authorities once again argued that the request offended the principle of the separation of powers, alleging that “it is the Executive that has the authority to delineate public policies and define which medications will be supplied gratuitously to the public, by weighing the rights of the individual against those of the rest of the community, given the need to comply with the principle that the individual must not demand the impossible of the state.”¹² Nevertheless, more than once, the court has decided in the patient's favor:

• a democratic state governed by the Rule of Law inherently offers the possibility of judicial review of administrative acts; the Federal Supreme Court itself has increasingly recognized the possibility of judicial questioning of the State's refusal to supply various pharmaceuticals listed in the Clinical Protocols of the SUS, for the treatment of certain illnesses.¹³

The role of the Judiciary in determining that public policies established by administrative and infra-legal measures need to be edited or revised must be tempered by the principles that guide judicial protection of citizens against administrative authorities.^14–16,i To this end, the Euro-American Code^j stipulates that the scope and intensity of judicial supervision should be as follows:

• The mission of the Judiciary in the administrative jurisdiction is to uphold the Rule of Law, supervise the legality of administrative proceedings, and to protect and enforce rights and legitimate interests.

• To this end, the administrative jurisdiction rules on the following claims, in particular: (a) the annulment of administrative acts or norms; (b) mandatory and prohibitory injunctions, including enacting administrative acts or norms; (c) orders to hand over a certain thing.

• The Judiciary must examine the legality of the administrative authority's acts or omissions. Review of legality encompasses errors of jurisdiction, procedure and form (formal or external legality) as well as errors of content (substantive or internal legality). Review of content refers to examining the legal grounds of the individual act [questions of law], factual determinations [questions of fact], and legal classification of the events [mixed questions of law and fact]. [The court also] verifies whether the administrative authority has abused its power. Even when the administrative authority has applied ill-defined legal concepts, the court may examine whether they have been correctly interpreted and applied.

• Regarding the review of discretionary powers, it is the duty of the Judiciary to examine in particular: (a) whether the administrative authority's act or omission exceeded the limits of its discretionary powers; (b) whether the proceedings were suited to the purpose established in the regulation granting the powers; (c) whether there were actually infringements of fundamental rights or principles, such as equality, proportionality, good faith, protection of legitimate expectations, and prohibition of arbitrary action. The Judiciary also reviews the failure to exercise a discretionary power.^k

The above-cited stipulations would be no different if the content of the disputed administrative acts relate to public healthcare. This is true except with respect to the technical aspects that might require the Judiciary to have special qualifications to ensure the quality of the judicial supervision, as will be mentioned below.

Thus, the Judiciary does not go beyond its institutional functions to ensure effectiveness of the right to healthcare when it exercises judicial review over healthcare policies, because the right to healthcare is a fundamental right in Brazilian case law.¹⁷ For this reason, the Judiciary involves itself in the healthcare policies otherwise subject to administrative acts and standards. That power of judicial review is not limited to repairing the harm caused by an erroneous policy, but also includes the review of policies and orders to revise the corresponding administrative acts or rules.^18,l

Does the Judiciary have the expertise to interfere with the healthcare policymaking?

As already noted, the National Council of Justice (CNJ) Resolution no. 107 established the National Judiciary Forum to monitor and settle healthcare assistance claims. According to Article 2 of that resolution, one of the objectives of the National Forum is to “propose concrete normative measures to organize and structure specialized judicial units.”¹⁹ That proposal supports the need for the courts to promote judge's visits to the healthcare units and for judgeship schools to promote courses and events on that subject.¹⁸

In fact, the constant specialization of the courts is an inherent measure of the quality of judicial performance and therefore of the principle of effective judicial protection. It is assumed that the judges are best suited to answer the specialized questions repeatedly referred to them, since that enables them to gain in-depth knowledge and reduce the margin of error.

The specialization of judicial bodies in the subject area of healthcare would, however, entail fractionalization of judges and bodies with jurisdiction solely over public healthcare law. In Brazil, there are no judicial bodies specializing in health or public healthcare.^m Certain noteworthy examples of specialized judicial bodies may, however, be found in Europe. In England, for example, the Mental Health Review Tribunal makes decision on compulsory detention in mental health facilities for treatment purposes.²⁰ In France, the law of the 4th of March, 2002 (Loi Kouchner) and the law of the 9th of March, 2004 (Loi Perben II) have created certain courts specializing in public healthcare.ⁿ In Germany, it is worth mentioning the example of the “special healthcare senates” within the social rights courts, as shown by the Code of Judicial Procedural of Social Law.⁹

Moreover, the possibility of judicial review of review of administrative technical questions – also known as “margin of discretion in technical matters” – in the field of public healthcare is inherent to the right to effective judicial protection. In addition to the specialized legal aspects of healthcare law, there is increasing demand for a court with scientific and technical expertise in healthcare and healthcare management in order to decide such cases.

However, in a system such as Brazil's, in which judges are necessarily educated in the law, such technical knowledge is derived from court appointed expert opinions. The role of the judge is at risk of becoming secondary or dependent in that respect.^{21,o,22,p,23,q} Would the judge be the hostage of the experts? This question generates a certain discomfort and justifies the National Council of Justice's recommendation that courts seek alternative means of raising judge's level of medical expertise, through specific judge training programs, including, for example, visits to public healthcare establishments and events that bring together judges and healthcare managers. ¹⁸

The United States presents an interesting response to the concern that expert testimony in cases turning on technical questions may reduce the trier of fact's role to a secondary capacity. In the United States both parties to a proceeding find, prepare, and present their own expert testimony. Court-appointed experts are possible, but rare.²⁴ The trier of fact, often a jury in the United States’ system, makes a determination based on the trier of fact's evaluation of the competing testimony. This approach is based on the idea that there are often conflicting perspectives on technical questions and that the trier of fact should be presented with those divergent perspectives before making a determination.²³ While the trier of fact, whether a judge or a jury, makes credibility determinations, the issue of admissibility of expert testimony is a question of law and is determined by the judge pursuant to Federal Rule of Evidence (FRE) 702.²⁵ FRE 702 states that a court may allow an expert to testify when:

• (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) “the testimony is based on sufficient facts or data;” (c) The testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.²⁴

As can be seen, the role of the judge in the United States with respect to admitting expert testimony under FRE 702 is broad. The requirement of 702(a) is a relevancy requirement, but the requirements of 702(b), 702(c), and 702(d) require the judge to test whether the testimony offered has a reliable basis.²⁶ Furthermore, this rule also addresses, at least in part, the concern that exists in Brazil as well as in the United States, that the judge's and trier of fact's role will crumble in the face of expert testimony.

An additional question that should be addressed is whether we should consider courts with a multidisciplinary composition of judges. In France, the courts specializing in public healthcare include a medical doctor, a veterinarian and, possibly, a pharmacologist, who act as the judge's permanent assistants: they are civil servants, and the medical doctor is a public healthcare inspector who has graduated from the École des Hautes Etudes en Santé Publique (Higher Institute of Public Healthcare) in Rennes.^27,r The German example has aroused quite a bit of interest. In Germany, the social law judicial system, with lay judges, permits judges with healthcare training to settle disputes of public healthcare law.⁹ The great advantage is that, since they are actual judges rather than mere expert assistants (assistant civil servants), these agents’ actions have greater legitimacy thanks to the guaranteed effective independence of judges.

Can the Judiciary protect an individual's public healthcare rights without considering other individuals in the same situation?

The existence of thousands of “healthcare law” cases indicates the extent to which we are faced with questions of public interest that demand suitable judicial measures.²⁸ In fact, if we look at the main causes of such disputes, we find a single public healthcare authority's action is repeatedly challenged because of its widespread effect.^4,s This raises the question whether current procedural instruments in Brazil relating to class actions are up to the task of handling questions of public law that affect public interests.²⁹

The Judiciary should follow the principle of equality before the law, ensuring equal treatment for everyone under its jurisdiction who is in the same factual situation. This principle justifies procedural instruments such as class actions, binding judicial precedents and model proceedings (Musterverfahren) that guide courts in resolving similar cases. Additionally, these procedural instruments also serve the goals of ensuring broad access to justice and reducing repetitive judicial proceedings.

However, in a public law case involving an administrative authority's acts or behavior, equal treatment before the law by the Judiciary is a natural consequence of the duty of equality. This duty of equality has always been binding on Government Agencies in their substantive duties and in the extrajudicial sphere.^30,31

It is unacceptable to impose duties on administrative authorities, which benefit individual claimants, without proper regard to the needs of society as a whole. There is no logical reason why an administrative act originally intended for society as a whole should benefit only litigants. Besides fragmenting and undermining the healthcare system, this mechanism involves the risk of excluding minorities who do not have access to the justice system, departing from the idea of a universal and egalitarian healthcare system.^32,t

Such questions should have one-time erga omnes decisions. The solution should not reside solely in the system of class actions. Brazil has no solid basis for a specific judicial procedure compatible with the unique nature of public law in relation to private law cases. Class actions – which are traditionally connected with private law – generate great expectations yet fail to achieve the desired effect in terms of protecting public rights.^33,u

With these considerations we will venture to make a few suggestions de lege lata and de lege ferenda to improve the Brazilian judicial system concerning litigation of public healthcare disputes. We shall again use the example of a request for medication from the SUS.

The Federal Supreme Court has pointed out that:

• the Judiciary, whose vocation is to specify a just solution for a specific case (microjustice), is often not in a position to examine a certain claim for a social right, to analyze the overall consequences of the allocation of public resources to the benefit of one party to the invariable detriment of the whole.³⁴

Along the same lines, some scholars wish to exclude from individualized juridical proceedings, claims for new medication not included in the official lists on the grounds that such cases are essentially collective in nature and should be decided as such.

However, there is no clear way to deprive the citizen of the right to call upon the state to provide judicial services to satisfy a public right. Equally improper would be conditioning such services on decisions in class actions initiated by third parties. To deprive the citizen of access to justice and conditioning the recognition of rights upon third-party initiated class actions would contradict to the principle of effective judicial protection and of the Rule of Law.

In fact, upholding an individual's request for the SUS to supply the claimant with new medication can imply judicial recognition that the list of medicines should be modified. Such recognition is undoubtedly of general public interest. Assuming that the Judiciary considers it necessary to include the medication in the list, the natural tendency would be for the SUS not just to supply the medicine to the claimant, but to voluntarily promote modification of the list and make the medication available to everyone in the same situation. Such a measure would be an indirect consequence of the judicial decision. To do so, however, the socioeconomic impact and public interest of that measure would have to be exhaustively discussed in advance in the judicial proceedings. The need for prior exhaustive discussion is based on the fact that it is unacceptable for a judge, when delivering a judgment, to ignore the indirect effects of his decision on other patients.

Similarly, in a lawsuit in which it was argued that the medicines Pegylated Alpha-2a or Alpha-2b Interferon and Ribavirin were necessary for the treatment of chronic hepatitis C, one of the judges of the Superior Court of Justice found that “according to the principles of democracy, equal treatment before the law, and the feasibility requirement (Vorbehalt des Möglichen), it is not a duty of the state to provide an individual service if it could not be viably provided under equal conditions to all the other individuals in the same situation”.^35,36,v

However, the ideal solution would require enacting a new law in Brazil. The better solution would be to consider the basis of the individual claims as grounds to suspend considerations of the merits of the individual claim and to combine the claim with other like claims in an action brought by an independent public body. Such review would fall within the exclusive jurisdiction of a single court capable of issuing a decision with erga omnes effects, so long as the original case is suspended for a reasonable time, without prejudice to granting requests for urgent measures.^w

What is the relevance of finite resources to the court's role in resolving access to healthcare cases?

In an individual claim to be supplied the medicine Clexane 40 mg free of charge, within 30 days after childbirth, the Public Healthcare Authority argued that budgetary constraints precluded relief in this claim, since the Public Health Authority had limited economic-financial capacity. It is said that public entities work with scarce resources and have duties to meet the needs of the entire population. The court – in accordance with the predominant case law accepted:

• the generic assertion of budget limitations related to the feasibility requirement (Vorbehalt des Möglichen). However besides the fact that the non-availability of funds to meet the initial claim has not been specifically demonstrated, it is not sufficient to prevent the realization of the constitutional right under review, especially in light of the well-known fact that the Government has abundant allocations earmarked for far less important interests than the health of the population (for example, advertising, special events), which can and should be redirected, when necessary, to satisfy the population's basic rights.³⁶

Moreover, it was affirmed that:

• it is not an undue interference by the Judiciary in the sphere of action reserved to the other branches (of government) but on the contrary, positive judicial action to provide services based on the relevant constitutional grounds and on the illegal omission of the administrative authority in attending to it; especially when that authority, in concrete terms, did not present any grounds that prevented its accomplishment in the least.³⁷

In fact, the lack of budgetary allocation could never interfere with the judicial recognition of rights to public healthcare, or even with the enforcement of sentences against the Public Healthcare Authority. The public budget is an essentially political instrument that depends on the law. Social rights, including the right to healthcare, flow from the Constitution or specific legislation. An administrative authority cannot deny the social rights established by the Constitution and legislation because of budgetary constraints. Both legislation and the Constitution charges the administrative authority with guaranteeing these rights and it would be contrary to the Rule of Law if judicial recognition of rights could be imagined to depend on the political intent of the Legislative or Executive branches when drawing up the budget.

Consideration should, however, be made when ensuring effective enforcement of urgent court orders of the limited human, material or financial resources available to the public healthcare authority. This includes resource limitations such as: the lack of professional specialists, hospital beds, equipment for treatments and examinations, etc. Such considerations are permissible when ensuring effective enforcement of urgent court orders because, in general, the judicial realization of the claimants’ rights must not affect the goods or services available to ensure the continuity of an essential public service. Therefore, it is necessary to seek a balance between public and private interests.

This idea that budgetary constraints do not excuse non-compliance with constitutionally guaranteed rights is also prevalent in the United States. In Goldberg v. Kelly the United States Supreme Court considered whether an individual's welfare benefits could be terminated without an evidentiary hearing.³⁸ The welfare authority cited the excessive costs of providing evidentiary hearings as the reason for not conducting a pre-termination hearing.³⁹ The Supreme Court ruled that “[w]hile the problem of additional expense must be kept in mind, it does not justify denying a hearing meeting the ordinary standards of due process.”⁴⁰ The approach in Goldberg in which a constitutional guarantee to due process could not be overcome for budgetary reasons, matches the approach adopted in Brazil in which the constitutional guarantee to healthcare could not be overcome by budgetary constraints. A central difference is that in the United States there is no constitutional guarantee to healthcare as there is in Brazil.

While the idea that budgetary constraints do not excuse non-recognition of constitutional rights may be obvious, there are diverging approaches on the manner in which rights are recognized. This is significant because diverging approaches to recognition of rights can lead to different outlooks on budgetary constraints. Christopher Newdick compares the individual-centric and the community-centric approaches to rights recognition.⁴¹

Under the individual-centric approach, rights are vested in the person and may be asserted just as any other right that belongs to an individual. In the community-centric approach, on the other hand, rights belong to society and the recognition of a right in any individual case depends on the effect of recognition on society as a whole.⁴² Since rights belong to society in the community-centric approach, judicial protection should be afforded to guarantee that all members of society have equal opportunity to benefits.⁴² This emphasis leads to greater weight being given to judicial protection of procedural rights.⁴² Under the individual-centric approach, however, judicial protection is designed to guarantee “that which is properly mine.”⁴² This emphasis leads to greater weight being given to judicial protection of substantive individual rights.

Brazilian courts, as well as the European Court of Justice (ECJ), adopt the individual-centric approach and offers judicial protection of substantive individual rights.⁴¹ It is clear in a jurisdiction that offers judicial protection for individual substantive rights that budget restriction cannot justify denying a right that belongs to the individual. This is the situation in Brazil and in the ECJ jurisdiction. It is equally clear that a jurisdiction that takes a community-centric approach and provides judicial protection of procedural rights must take into account the effect that recognition of a right in an individual case has on the budget since the right belongs to society as whole.^41,x

In the procedural sphere, however, the specificity of the topic comes from the fact that public healthcare claims are predominantly asserted through urgent judicial measures (such as claims for injunctive relief). In urgent judicial measures, judicial recognition of a substantive right and protection of that right coincide in time. This is so that the weighing of public versus private interests is one more prerequisite for granting the measure. Additional conditions precedents include the requirements of fumus boni iuris and periculum in mora.

Final considerations

In sum:

• 1.

  The judicialization of healthcare policy is no exception to the three-branch system of government since it is the duty of the Judiciary to protect rights by exercising complete jurisdiction over the Public Healthcare Authority. This includes reviewing its discretionary functions and scientific content.

• 2.

  The shortage of public funding is not an obstacle to judicial recognition of public healthcare rights, despite material impossibility of enforcing the decision being considered a legitimate excuse on the part of the administrative authority. Given the lack of public resources, especially human and material resources, the courts must weigh public versus private interests before granting urgent measures concerning healthcare law.

• 3.

  The creation of specialized courts might be considered, perhaps even with a multidisciplinary panel of judges bringing together healthcare professionals in order to ensure high-quality judicial services, particularly when it comes to administrative questions of a scientific nature.

• 4.

  The Brazilian class action system is neither adequate nor effective in protecting public rights and consequently public healthcare rights. The healthcare law cases – if based on public policies – should provide single decisions of general applicability, in order to prevent the Judiciary from serving as a tool to circumvent the administrative authority's duty to follow the principle of equal treatment before the law.

• 5.

  A single specialized judicial body composed of multidisciplinary members may help safeguard the principle of equal treatment before the law while at the same time reducing the number of repetitive trials and improving the quality of judicial services in public healthcare matters. Such a body would be situated on the federal or State levels. The specialized body would decide on federal, State or municipal healthcare policies, even when individual claims only incidentally imply healthcare policy questions.

Finally, it should be noted that, except for the suggested specialization of certain judicial bodies in the healthcare field, the remaining conclusions show that the “judicialization of healthcare policy” and the judicial protection of public healthcare rights may be carried out efficiently in accordance with the fundamental principles of jurisdictional action vis-à-vis the public health authorities, without requiring any special rules of procedure.

Conflicts of interest

The author has no conflicts of interest to declare.

Acknowledgements

I am indebted to Carlos André Galante Grover, J.D. candidate at American University, Washington College of Law, for his invaluable assistance in reviewing this article and research on the United States’ experience of the judicialization of healthcare. All errors remain the author's.