Minister defends urgency of debate on healthcare judicialization

12/4/2017 – 6:20 p.m.

CNJ News Agency | Manuel Carlos Montenegro

The debate on healthcare judicialization is as urgent as those who suffer from the pain caused by an illness. With this image, in a meeting held at CNJ on Monday (December 4), the President of the National Justice Council (CNJ) and the Federal Supreme Court (STF), Minister Cármen Lúcia, defended before representatives of the pharmaceutical industry the need to debate alternatives for the Judiciary to face the increasing number of lawsuits to ensure medicines, surgeries or treatments related to healthcare.

“What we are looking for here is a greater opening of the debate on healthcare, since pain is urgent. Pain establishes an urgency for those who suffer and for the public agents to whom they resort (to put an end to the pain), whether they are in the Executive or in the Judiciary. I believe that this is not only an issue for the State – it is an issue for society as a whole. That is why it is so important to open this discussion and seek the best alternative so that Brazilians do not imagine that the right to healthcare – a major achievement of our generation – is only on paper. It is a very serious and touching issue because, as I always say, those who feel pain are in a hurry,” said the Minister.

Carmen Lúcia attended the meeting of the National Executive Committee of the Healthcare Forum, established by the CNJ, with representatives of the Pharmaceutical Research Industry Association (Interfarma).

According to the Minister, the number of actions is not the main issue of the judicialization, given the deficient provision of healthcare services to the Brazilian population.

“What concerns us is not the number of health-related cases that go to court. What worries me – and to all of us, I believe – is that there is a constitutional right to healthcare, and that this is a fundamental right for the dignity of life. If the number of lawsuits filed corresponds to a poor delivery of healthcare services to citizens, I must restructure the Judiciary, as we are not calling into question the fundamental right to healthcare. The Federal Constitution begins, in Article 1, by placing human dignity as a fundamental principle of the Federative Republic of Brazil,” she said.

Complexity

The minister recalled, however, that the delivery of healthcare services by judicial decision is not ideal, as it exposes magistrates to urgent decisions and pushes the limits of the public budget. “Governors, above all, tell us that judges often issue decisions, or sometimes injunctions (preliminary injunctions, with an immediate effect), to compel the state to buy an imported medicine, when there is another with the same effects, according to evidence-based medicine; however, judges often have an extremely short time to decide whether to approve said lawsuit or otherwise. A governor told me, as soon as I joined the Supreme Court, that he spent 18% of the healthcare budget of his state (with 16 million inhabitants), to comply with judicial decisions in favor of 300 people. These are tragic choices for public managers and for judges,” she said.

Healthcare Forum

The meeting with the pharmaceutical industry is one of the activities of the National Executive Committee of the Healthcare Forum, composed of magistrates, representatives of the Public Prosecutor and the Public Defender, executive managers, and academics, with the aim of monitoring and proposing solutions to the demands related to healthcare submitted to the courts. The CNJ committee supervisor and advisor, Arnaldo Hossepian, highlighted the fact that administrative changes must be carried out in the Judiciary, since “the courts are the last resort of hope, especially for those suffering from a serious illness.”

Industry

Antônio Britto, President of the Pharmaceutical Research Industry Association (Interfarma), highlighted the complexity of the judicialization phenomenon. Britto listed three types of lawsuit brought to the courts. The first refers to reparations demanded in court due to negligence or administrative failure by the government. There are also requests motivated by experimental treatments without proven effectiveness or safety.

A third form of judicialization occurs when a patient asks the state to provide a drug that, despite being registered at the National Health Surveillance Agency (Anvisa), is not offered by the Unified Health System (SUS). The Interfarma representative called for a non-Manichean discussion. “We cannot treat judicialization as the work of criminals, aimed at looting public resources. Nor should we consider judicialization as a kind of holy distribution of justice,” he said.

Public hearing

On December 11, Justice and Healthcare will be debated in a public hearing promoted by the CNJ. The proposal is to discuss with Brazilian society the role of the courts in lawsuits filed to meet demands related to healthcare. Access to healthcare services and technologies will be discussed at the event, scheduled to take place next Monday (11/12), at 9 am.