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Eduardo Appio1
Imagine two citizens. One rich and the other one very poor. Both of
them depend on good medication for a lethal kind of disease. Imagine
yourself as a federal servant, responsible to distribute the resources of the
Health Federal budget2. You have the revenue for just one of those patients.
Which one would you protect (save)? If you live and work as a federal judge in
Brazil, the answer is...the rich guy. Only the rich guys can afford good lawyers
expenses and only the richest have the best lawyers. If you are a rich guy,
follow my advice...move to Brazil when retired. This is a joke, of course...but a
serious one. I live in Brazil and work as a federal judge in a District Court
(Curitiba, state of Paraná, Brazil). Everyday I see several judicial decisions
dealing with life and death, medication and non-medication3. Nowadays our
1
Federal Judge in Brazil (Curitiba, Paraná). Pós-Doc in Constitutional Law
(www.eduardoappio.com.br)
2
Brasil has a 193 million people population (2008). Federal budget for health in 2009
is the biggest in the country (around U$ 25 billion) almost the double designated by
law to education, for example. We also have a welfare budget (U$ 15 billion for
2009), responsible for social public policies, such as family grants, social security,
focused on elderly, childhood and personal disabilities among people living under a
level of misery (under/around U$ 50,00/month). Those people receive monthly
payments from federal government (U$ 200,00/month/each). Health budget is
supported by federal revenues (federal taxes) and SUS (sistema único de saúde) was
enacted (by L. 8.080/90) in three levels (federal, states, local) supported by federal
budget. The states are responsible for expensive medication (policy execution),
including buy and distribute these medications.
3
In 2008 we had a 246% increase in the number of petitions before federal Courts in
Brazil dealing with the constitutional right to health against government (mandado de
segurança – mandamus, amparo). The debate over health rights in Brazil and its
enforcement through federal Courts depends on a previous debate about judicial
activism in XXI century. Health, housing, safety, education belong to a extensive list
of collective desires, with severe impact under public budgets. People will pay,
anyway, for more health, more education, more safety in streets. Traditionally, the
costs of inflation are paid directly by the poor, and new taxes means new prices and
employment reduction in the country. We must answer four basic questions, (1) is
there an individual right to health in our 1988 Constitution? (2) who is able to decide,
under a democratic system, about health public policies, considering all the
government efforts in this subject ? (3) Are judicial decisions improving the system or
just creating bigger deficits for the public sector? (4) Judicial activism is justified in
cases about collective (social). rights? That’s why I’m proposing a broad debate in
2
support this new right. At this point of our history, we did not had a genuine
health right, but only a federal government responsibility. The last
Constitutions (1937,1946,1969,1988) all mentioned health rights as a
government responsibility and a public duty.
6
Decided, for example, on Ação de Descumprimento de Preceito Fundamental
(ADPF) n. 45/DF (04.29.2004), Ministro (Justice) Celso de Mello available on
www.stf.jus.br . This decision is about public policies and the Supreme Court (right to
education), but judges (and lawyers) quote this same decision when they are working
with health rights in Brazil and the role of the judges. It’s not a leading case, cause it
is a single decision taken for one of the eleven Justices in our Supreme Court. We
have other decisions too, but all them single decisions based in the constitutional right
to life and the human dignity principle. We do not have (yet) a judicial regulation of
this constitutional right, altogether judges (usually, not always) in lower federal
Courts pay attention to the economic condition of the patients and the lethality of the
disease. There is not any kind of debate over patients with special conditions (rare and
congenital diseases, for example). Traditionally, the judicial system in these cases is
been used by middle class people and the rich, as the same with SUS (sistema único
de saúde) when a transplant or expensive medicine is recommended. This
individualistic approach (appropriation) create new social inequalities among rich and
poor. Only a republican view could save us from this unpleasant heritage, which is
linked with our colonial past and feudal traditions. For the common patients, SUS
(sistema único) is a broad (but inefficient) program, which attends around 85% of the
population.
7
Congress in Brazil is trying to approve a statute which implies broken patents
(industry royalties) in retrovirals for AIDS.
4
8
This private market increased 11% between 2000/2005 in Brazil. Even if a brazilian
citizen has a private health insurance he can use SUS (sistema único de saúde). He is
not to inform this condition to the government. So, federal government is not able to
be reimbursed by private insurers in procedures involving their costumers (patients).
In Brazil, highly expensive medical treatments – such as cancer treatment and
transplants – are supported, exclusively, by the government. The medical bills are
supported by the federal government, altogether the high profits for this industry.
Besides that, all the medical (dentist) expenses can be deducted from IR, imposto de
renda (they are subsidized by the government) in a public policy that benefit directly
the rich and upper middle class people in Brazil. When a private contract is
controversial in a judicial action, judges have a private approach (interpretation)
under L. 8078/1990 (código de defesa do consumidor). Patients are seen as consumers
protected by a federal statute (consumerist). In those cases, Courts have been deciding
pro/patients, which means to say, creating new duties for the parties above the signed
contract, but outside of the constitutional rights scheme. The Constitution is not
quoted in those judicial cases, cause the source of the Law is statutes.
5
citizens9 – and above – have health insurance10, and all the expenses can be
declared in annual IR. They are subsidized by the federal government that
allow unlimited deductions.
The government view is not the Judicial Power view. They both
agree about the content, but disagree about the extension. Our Supreme
Court in the last years, supports an individualistic view. The Supreme Court
ruled – at least four times – that every citizen in Brazil has an individual
(positive) right against government. A right to have even the most expensive
medical treatment all over the world, which usually includes cancer
medication such as Avastin e Alavert11. This judicial approach is based on
three premises. First, an universal and public health system means an
equality system, which means to say, equality and equity are the same thing
by the Constitutional Law. Second, health rights are individual rights and not
collective rights. Third, health rights are not based on a political option
(positivistic option) but – in fact – in natural law, which means to say, they are
supported by the notion of human dignity above the States and Constitutions.
The three premises are false. First, equality is not equity. If you treat rich and
poor in the same way, dealing with social rights, you (probably) will not
produce equity results. You will create an unfair system, cause the poor will
pay for the rich bills. Worst, you will be taking from the poor to give to the rich,
as a surrealistic Robin Hood. You cannot allow such a system, cause it breaks
the basic principles of justice in a society. Second, health rights belong to a
collective and coordinate political scheme. When you think about the
government responsibilities, you must think in public policies and not
individual rights. Specially after the increasing costs of using the new
9
People who have a monthly income around U$ 1.000,00
10
In June 2008, 1.577 health insurers (private companies) in Brazil, dealing with 51
million people (27% population). This market is oligopolistic, cause 16% of those
private insurers provide more than 80% of all contracts (ANS information – a federal
agency).
11
These new generation of medicines against several kinds of cancer are highly
expensive and generate incredible profits for the pharmaceutical industry. The
treatment cost for an individual is estimated – in Europe – in 1.000.000,00 Euros. Of
course the industry has to be paid, cause the invested their money in state of the art
medical research. Health is not a simple product, but new medicines are, in fact,
technologic commodities as a result of the private (sometimes public) investment. The
problem in Brazil is the conflict of interests involving doctors, hospitals, government
industry and pharmacies. A genuine scandal in Brazil.
6
when individual (constitutional) rights are in danger and since the Court allow
community participation in the process, hearing amici curiae for example.
Otherwise, the debate occurs in Congress or even in streets and universities.
However, our Supreme Court is certainly one of the most activists Courts in
history... in world history. Since Justice Gilmar Mendes – a notorious scholar
in Brazil – was chosen as the new Chief of Justice (two years tenure)15 the
Court is engaged in (judicial) public policies, such as health policies, security
and criminal policies, in a classic legislative task. After several years of
silence, now the Court is talking too much and too loud. The Court overruled
its past decisions about the limits of its own jurisdiction, ruling that they
regulate, on a very broad standard, constitutional rights16. Recently (2008) our
Supreme Court ruled that its decisions in single cases (judicial review) create
a new system which pointed out a truly Brazilian “stare decisis”. Since then,
only decisions taken in abstract control of constitutionality (european model)
had the virtue to bond judges and the Court. This “repercussão geral” works
as a genuine writ of certiorari and allow Supremo Tribunal decide which kind
of cases involve constitutional questions. We are – right now – quite near from
US model (Judicial Review) and far away from European model (Germany,
Spain, Italy, France, for example). That’s why judges are deciding everyday
about health rights in Brazil until our Supreme Court decide this “repercussão
geral”, which probably will happen in 2009. So far, we have thousands of
judicial decisions in favor of the patients17.
such as criminal offenders in prison (convicted prisoners), who are not able (in Brazil)
to participate on regular elections (they have their electoral rights suspended during
the condemnation).
15
04.23.2008
16
Nowadays in Brazil, Mandado de Injunção (MI) is a constitutional remedy that can
be used when Congress does not regulate how some constitutional rights can be
invoked in Courts, such as labor rights. When Congress is mute and don’t enact the
federal statute, Court is allowed to talk. In the first years of the 1988 Constitution,
altogether, our Supreme Court decided that this mandado de injunção did not
authorize a legislative role for the Supreme Court (Supremo Tribunal Federal, MI
107-DF, 11.21.1990). This decision was recently overruled in MI 670 (Supremo
Tribunal Federal, 10.25.2007) which regulate public servants labor rights, including a
right to participate on strikes.
17
Several kinds of expensive medication (around 250) are provided directly by federal
government through states. There are medical protocols approved by federal agencies
under technical approach. Interferon, for example, which is a medicine for hepatitis C
is provided by this federal program, including Interferon Peguilado (newest). The
9
problem arise when patients disagree about the content of those medical/technical
protocols or even when they want some kind of medicine still dont approved for our
Health Federal Agency (ANS – agência nacional de saúde, brazilian FDA). In some
situations, patients wants to have the medical exams immediately, but public hospital
and clinics don’t have material (human) condition to obey this duty.
18
The subject will be decided trough a writ of certiorari (repercussão geral) in our
Supreme Court and the Court is now hearing amicus curiae (audiências públicas
schedued public hearings on april 27 and 28, 2009) before the decision. The Court
will decide about the health rights extension in Brazilian Law.
19
47 billion of Reais (around U$ 21 billion for 2009). For further information about
our health system in Brazil I recommend a research study published by World Bank in
Brazil. It’s an extensive and reliable study about the last fifteen years in Brazil
(Governance in Brazil's Unified Health System (SUS) (em Inglês).
There is an english version in internet
(web.worldbank.org/WBSITE/EXTERNAL/HOMEPORTUGUESE/EXTPAISES/EX
TLACINPOR/BRAZILINPOREXTN/0,,contentMDK:21436434~pagePK:141137~pi
PK:141127~theSitePK:3817167,00.html)
20
About this subject an the importance of the health insurance system with basic
services for everyone DWORKIN, Ronald. SOVEREIGN VIRTUE. Harvard
University Press, 2000 (chapter II). United States are debating (Congress) a new
model based private health insurance supported by patients and government, maybe
eliminating Medicaid and Medicare. This system is based on individual responsibility
and the economic condition of the patients.