The judicialization of healthcare is one of the most striking phenomena in our country. This is because it reflects the tension between the individual right to health, guaranteed by the Constitution, and the sustainability of the Unified Health System (SUS).

But what is behind this phenomenon and what are the possible solutions? 

In this text, I want to explore these issues with you.

To begin: what is the judicialization of healthcare?

In general terms, the judicialization of healthcare occurs when citizens resort to the Judiciary to ensure access to medications, treatments, or medical procedures that are not available in an accessible or adequate manner through the Unified Health System (SUS) or private health insurance plans. 

If we observe, the judicialization of healthcare has gained considerable momentum in recent decades.

Consider cases of patients who legally request high-cost medications that are not included in the official lists of the SUS (Brazilian Public Health System), such as the RENAME (National List of Essential Medicines). 

What happens is that these medications are necessary for the treatment of rare or chronic diseases, and when the public system denies such medications, citizens seek access to these treatments through court orders.

Another relevant example is the denial of coverage by private health plans for specific procedures, such as surgeries or experimental therapies. 

In these cases, users have also filed lawsuits to ensure that their treatments are covered by health insurance plans.

In general terms, the judicialization of healthcare is a kind of tool used to correct flaws in the system.

The problem is that this "excess of demands" raises some questions! 

The most common question is: what are the limits of judicial intervention in public policy, especially when budgetary and technical constraints are involved?

What is at stake with the judicialization of healthcare?

The first aspect that is usually analyzed is the constitutional perspective.

The Federal Constitution of 1988 itself establishes, in article 196, that health is a right of all and a duty of the State.

In other words, it is a fundamental right, guaranteed in the constitution itself.

However, the lack of effective public policies and the insufficient resources to meet all the demand have generated even greater inequalities in access to healthcare. 

On the other hand, advances in medicine and the availability of new, high-cost medications have increased public expectations for effective treatment.

Amid this debate, the phenomenon of judicialization emerged, as many patients resorted to the courts to secure medical treatments that would otherwise be inaccessible.

Therefore, any citizen can seek recourse through the Judiciary to guarantee access to treatments and medications necessary for their health, especially when the SUS (Brazilian Public Health System) or health insurance plans do not meet these needs.

Based on this thesis, there was a "boom" in the filing of lawsuits.

Another crucial point is the gap between administrative guidelines and the reality experienced by patients. 

For example: while the National Commission for the Incorporation of Technologies in the SUS (Conitec) rigorously evaluates the effectiveness and cost-effectiveness of medications before including them on the SUS list, many critically ill patients cannot wait for the established deadlines for these analyses.

What is the reality experienced by users of the Brazilian public healthcare system (SUS)?

To understand the judicialization of healthcare, it is essential to consider the reality faced by users of the Brazilian public healthcare system (SUS). 

The system, despite being one of the largest public health initiatives in the world, faces daily challenges such as long waiting lists for appointments and procedures, shortages of medication, and inadequate infrastructure in some regions.

A common example is the difficulty in accessing specialized treatments. 

Patients with chronic diseases, such as diabetes or hypertension, often report delays in the supply of essential medications. 

Furthermore, more remote regions face a shortage of healthcare professionals, which further exacerbates inequalities in care.

The experience of those who use the Brazilian public healthcare system (SUS) reveals the importance of more robust public policies and investments in infrastructure and training. 

In practice, improving communication, reducing bureaucracy, and ensuring humane treatment are fundamental steps to minimize the gaps that lead to the judicialization of healthcare.

Important decision by the Supreme Court

Recently, the Brazilian Supreme Federal Court (STF) outlined objective criteria for the judicial granting of medications not yet incorporated into the Unified Health System (SUS). 

The judgment of Extraordinary Appeal (RE) 566.471, widely known as General Repercussion Theme 6, marked a significant advance in consolidating rules that seek to harmonize the constitutional right to health with the complex financial and administrative challenges faced by the SUS (Brazilian Public Health System).

The case of topic 6 of General Repercussion

The agenda for the trial involved a request for the state to provide a high-cost medication to a patient whose survival directly depended on that treatment. 

However, the medication was not included in the lists of medicines offered by the SUS (Brazilian Public Health System), such as the RENAME (National List of Essential Medicines). 

Based on this case, the Supreme Court was called upon to decide this complex issue.

In its ruling, the Brazilian Supreme Court (STF) recently determined that, for a court order granting access to medications not included in the Brazilian Unified Health System (SUS), the plaintiff must cumulatively prove the following requirements:

• Administrative refusalThe medication must have been formally refused by the SUS (Brazilian Public Health System). In other words, the patient needs to demonstrate that they have exhausted all administrative avenues before resorting to the courts.
• Illegality or omissionThere must be evidence that the National Commission for the Incorporation of Technologies in the SUS (Conitec) was negligent, excessively delayed the analysis of the medication, or acted illegally in deciding not to include it on the lists. Furthermore, this analysis must comply with the deadlines and regulations of Law No. 8.080/1990.
• IrreplaceabilityThe requested medication must be irreplaceable, meaning there cannot be any alternative therapies available within the Brazilian public health system (SUS) that meet the patient's needs.
• scientific evidenceThe efficacy, safety, and effectiveness of a medication must be proven based on high-level scientific studies, such as randomized clinical trials and systematic reviews. This requirement reinforces the importance of evidence-based medicine.
• Clinical indispensabilityA detailed and well-founded medical report is essential to prove that the medication is indispensable for the patient's treatment. The report should describe previous treatments and justify why other options are not suitable.
• Proof of financial inabilityIt is up to the author to demonstrate that they cannot afford the cost of the medication without compromising their own livelihood or that of their family.

The Role of NatJus

One of the highlights of the decision was the recommendation that judges consult the Judicial Technical Support Center (NatJus) before making a decision. 

NatJus offers opinions based on scientific evidence, contributing to more informed decisions aligned with best medical practices.

This measure prevents hasty decisions and ensures that public resources are used efficiently.

Why invest in specialization in Health Law?

The judicialization of healthcare in Brazil has presented challenges that go beyond the traditional legal field. 

Issues such as access to high-cost medications, the impact of health plan regulation, and the application of ethical standards in bioethical contexts are examples of situations that demand sophisticated and well-founded solutions.

Furthermore, the advancement of legislation such as the General Data Protection Law (LGPD), especially in the health sector, increases the need for professionals prepared to deal with technical aspects that directly impact the lives of patients and the activities of companies and public bodies.

Enroll in IDP's LLM in Health Law.

The Brazilian Institute for Teaching, Development and Research (IDP) offers an LLM program in Health Law that stands out for its innovative and multidisciplinary approach. 

Designed for lawyers, public administrators, and other professionals in the sector, the course provides the necessary knowledge to address contemporary healthcare challenges.

With a faculty composed of renowned experts, the program covers a wide range of topics, such as:

• Judicialization of healthcare and alternative dispute resolution;
• Regulation of health plans and public policies;
• Bioethics and civil liability of healthcare professionals and institutions;
• Impacts of the LGPD (Brazilian General Data Protection Law) on the healthcare sector;
• Technological trends and new legal paradigms.

In a sector marked by constant innovation and change, specialization is key to standing out and transforming challenges into opportunities. 

Invest in your education and be prepared to lead the changes in health law. Secure your spot in IDP's LLM program and start your journey to professional excellence today.

References 

BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Available at: https://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm.

BRAZIL. Law No. 8.080, of September 19, 1990. Provides for the conditions for the promotion, protection and recovery of health, the organization and operation of the corresponding services and other measures. Available at: https://www.planalto.gov.br/ccivil_03/leis/l8080.htm.

SUPREME FEDERAL COURT. Extraordinary Appeal 566.471. General Repercussion Theme 6. Available at: https://portal.stf.jus.br/.