For a long time, the debate about the judicialization of health has focused on access to healthcare — such as access to medication and/or surgeries. Year after year, as lawsuits piled up, courts have debated whether the right to health means that individuals are entitled to certain treatments. Scholars have also joined the discussion, weighing in with considerations about the effectiveness of this approach from different perspectives. They have raised questions about the impact of judicial decisions on public policies, as well as about equity in healthcare and within the judicial system itself.
A couple of months ago, in Brazil, the equivalent to the Supreme Court (Supremo Tribunal Federal) decided key issues when it comes to the judicialization of health. The majority set an important precedent that established guidelines to the decision-making process of judges: the State cannot be required to supply experimental medication; as a general rule, the lack of registration before the regulatory agency (Agência Nacional de Vigilância Sanitária – ANVISA) prevents the supply of medication by judicial decisions; and, exceptionally, it is possible for a judge to order the supply of experimental medication that is not yet registered, in the event of unreasonable registration delay of the agency in charge. Under these exceptional circumstances, the Supreme Court also established that three requirements must be met: the existence of an application for registration before the agency; the existence of registration in renowned agencies abroad; and the inexistence of therapeutic substitutes already registered in Brazil. Lastly, the Supreme Court decided that all lawsuits seeking the supply of non-registered medication must necessarily be filed against the Union (as opposed to the states or municipalities).
This decision is the latest piece in the effort to restructure the judicial system in order to deal with numerous — and frequently similar — demands in a country of continental proportions. Back in 2013, the National Council of Justice (Conselho Nacional de Justiça) recommended that tribunals create judiciary sections specialized in health. In the following year, and in response to such recommendation, courts all over Brazil started being re-structured to accommodate this competence. In 2016, for instance, the Federal Tribunal of the 4th Region (TRF4) became the first court at the federal level to institute judiciary sections specialized in health. The expectation was that this structural change would lead to faster and more technical decisions.
While this trend of specialization in health has a clear focus on access to healthcare, it is important to recall that health is a much broader concept: according to the World Health Organization, “[h]ealth is a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity.” In this sense, the Committee on Economic, Social and Cultural Rights has said, “[the right to health] is an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information…”.
Having said this, maybe it is time for the debate around the judicialization of health to take a step beyond access to medication and/or surgeries, understanding that some of the biggest discussions when it comes to health involve other matters, such as restrictions on advertising to children or liability of the tobacco companies for public health costs. This might be where some of the most important issues lie, and if courts are to interpret health in light of international instruments, there is definitely room to explore.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.