Right to Health Litigation in Brazil: The Problem and the Institutional Responses

Abstract

This article first analyses how courts, by applying the right to health as a trump against rationing decisions, have become a relevant healthcare policymaker in Brazil. Based on empirical findings, it argues that right to health litigation makes the Brazilian public health system less fair and efficient. It then discusses three responses to the negative impact of litigation on the health system: the public hearing held by the Supreme Federal Court and the test established thereafter; the recommendations by the National Council of Justice aimed at building courts’ institutional capacity; and Federal Law 12.401/11, which created a new health technology assessment system. Based on a comparative institutional analysis, it concludes that the latter response is the most adequate because it keeps the substantial decisions on the allocation of healthcare resources in the institution that has better capacity to make them and facilitates the judicial control of procedure.