Judicialization of health: everything you need to know

According to a survey commissioned by the National Council of Justice (CNJ) and the Judiciary, there was a 130% increase in the number of requests for judicialization of health between 2008 and 2017.

In this process, the person can go to court against the government or health plans in order to claim a procedure.

Universal and equal access to health is a guarantee of the Brazilian Federal Constitution. However, the Unified Health System (SUS) does not include the nearly 190 million Brazilians it serves, as not all treatments are available through the service.

Despite the right, this resource does not bring equity to health . After all, not all patients are aware of this possibility. In addition, the delay in justice causes many to give up, since the disease can progress depending on time.

To understand more about the theme and how to act, we have prepared this article! In it, you will understand exactly what is judicialization of health, when it is advisable to resort to this process and how to do it successfully.

What is judicialization of health ?

Article 196 of the Federal Constitution makes the right to health clear . Based on this, SUS works under three aspects: promoting, protecting and recovering. For this reason, any Brazilian citizen who wants to use the

public health system must be assisted.

However, when this does not happen, the individual can bring a lawsuit in the Court of Justice against the State. After all, he stopped receiving something that the Constitution cites as a right.

The person can go to court to request treatments that are not available by SUS or that have a very high value in the private network. It is also possible to request access to medicines , consultations and procedures.

In addition to the public system, the judicialization of health also encompasses lawsuits against health plans that refuse to cover treatments that the patient needs.

Currently, most of the requirements are related to assistance for medications and treatments not provided by the public health network and health plans. There are also orders for medications that are found only abroad, but represent a small percentage.

When is it advisable to use this resource?

According to research carried out by the Association of the Pharmaceutical Research Industry (Interfarma) in 2015, the vast majority of cases for ordering medicines ends up being accepted, about 87%.

But, before resorting to this resource, it is necessary to pay attention to the conditions. In the state of São Paulo, for example, there is a body in which it is possible to request medicines without the need to go to court.

If the patient files an action before this request, the request will be rejected by the State.

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Therefore, before opting for the judicialization of health, it is important that the patient and the lawyer are aware of what is necessary and if the situation is suitable for judicial demands.

In addition, it is necessary to consider that these processes are not usually agile, and may take months or even years. Therefore, if the case requires urgency, it is advisable to put in the balance what is most beneficial for the individual.

It is necessary to understand how SUS works

Something common to happen is the judicial request for medicines that SUS already makes available, but for logistical or bureaucratic reasons, they do not reach the public.

In other cases, medicines are already offered by public policies, but applicants request more technological medicines that cost public coffers more.

However, before determining which drugs will be made available in SUS, the National Commission for the Incorporation of Technologies (Conitec) makes an assessment and sends a report to the Government to ascertain the best cost-benefit ratio.

Before asking the court, it is interesting to check all these data.

What the increase in the judicialization of health shows

As mentioned at the beginning of this article, in the last few years there has been a significant increase in the number of court orders for medicines.

This practice began in the 1980s, when the implementation of public policies in the health area began and, consequently, the government’s difficulties in meeting what was promised emerged.

Other reasons that helped to amplify the demand are the aging population, the economic crisis and the cuts in health. The last two were direct consequences for the increase in users of the public health network. Currently, about 70% of Brazilians depend exclusively on the system.

As a result, the increase in spending by the Ministry of Health (MS) on legal claims has increased 13 times since 2009. This information is included in the study commissioned by the National Council of Justice (CNJ), whose theme deals with the Judicialization of Health in the Brazil.

Spending on court decisions is higher than planned revenue

This phenomenon has placed the topic at the center of debates between managers and judges. After all, the increase in demand directly impacts public coffers.

The Union has a financial budget for each portfolio. An example is the state of São Paulo, one of the ones with the most lawsuits of this type, which in 2015 spent the equivalent of 1 billion in medical legal expenses, while it had earmarked only 600 million for the portfolio.

This makes the choice difficult for judges. After all, they need to decide to release a large amount that will unbalance the budget and will be aimed only at one or a few people. On the other hand, this is essential for the patient’s survival.

It is necessary to rethink the health system

In this sense, health professionals and the judiciary understand that it is necessary to rethink the health system. The intended investment does not meet all demands and the bureaucratic process prevents the arrival of medicines to the population.

Therefore, investing in a stronger health system is the solution. The State spends more on buying individual medicines by court order than if it was bought in quantity and negotiated values.

What is the role of the legal professional in the judicialization of health?

Not all cases of judicialization of health care require the presence of a lawyer. However, in the most complicated cases, in which there is a request for expensive medicines and treatments, the assistance and competence of the professional is crucial.

In this sense, being aware of the latest developments in the area, such as new regulations and updates, is important for a good defense and success in action.

Importance of the professional specialized in the judicialization of health

In addition, the legal and medical areas have differing opinions on the topic.

While one side claims the importance of offering the necessary treatment to all citizens, others problematize the poor planning of public policies that directly affect the SUS financial budget.

In view of this, the lawyer needs to understand the legal sector , but, without leaving aside the understanding of the dynamics of the medical field, both the private and private networks. Knowing both sides is essential to have a broad and total view of what you are proposing to defend.

Another highlight is the lawyer-client relationship. It is interesting to understand that that person’s needs are directly linked to time. In some situations, the delay in a process can worsen a situation or, in the worst case, represent the risk of death.

Having the sensitivity to deal with such serious issues is something that should be taken into account by the professional.

The professional can also act in defense

It is also important to note that the lawyer can act both in favor of the client and health plans. In the second case, it is important to be up-to-date on the company’s contract and policies, consumer law and judicial laws.

The combination of the medical and legal fields requires technical knowledge and specific skills for those who want to work in this.

Graduation will provide the necessary support for advocacy, but the details that permeate the medical field are something acquired in a specific course. For this reason, having a specialization in Medical Law is an essential differential for those who see the area.

Get to know the MBA in Medical Law & Legal Protection Applied to Health at the Postgraduate and Graduate Institute (IPOG)

With the increase in the demand for judicialization of health, the Medical Law gained prominence in the legal area, presenting opportunities for professionals who want to excel in their area of ​​practice.

However, graduation does not offer the complete basis for an area that mixes constitutional knowledge with terms and dynamics in the medical sector.

For this reason, lawyers who wish to work in the field seek specialization in Medical Law as a competitive differential in relation to competitors.

The specialization in Medical Law & Legal Protection of the Institute of Post-Graduation and Graduation (IPOG) aims to update the professional as to the practice of Medical Law and bring necessary skills to the practice. In it, the socio-critical view is developed, combining legal, social and humanistic knowledge.


by Abdullah Sam
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