July, 2012 Number 178 www.worldbank.org/enbreve A regular series of notes highlighting recent lessons emerging from the operational and analytical program of the World Bank‘s Latin America and Caribbean Region (LAC). UNIVERSAL HEALTH COVERAGE AND LITIGATION IN LATIN AMERICA by Roberto Iunes, Leonardo Cubillos-Turriago, Maria-Luisa Escobar 72688 seek the realization of their right to health, a phenomenon also called In recent years, several middle-income Latin American judicialization of the right to health. countries have seen a steep increase in the number of cases litigating access to curative services and inputs. A This activism is explained by the fact that the courts regard administrative renewed judicial approach to the enforcement of the inefficiencies and prioritization processes of health services that fail right to health, the expansion of health coverage, a more to protect an individual’s access, as a violation of government duties demanding public interest, an increased prevalence of towards this right. As a result, the courts have become the de facto overseers and guarantors of policies that affect the right to health. non communicable diseases and a limited capacity for fair and solid benefit basket design lie at the basis of Despite the increases in coverage achieved by many countries, public this phenomenon. Using an interdisciplinary approach policies have not advanced at the same pace as social demands and and evidence from Argentina, Brazil, Chile, Colombia, health needs—and have not recognized the importance of a human Costa Rica, Peru, and Uruguay, this paper examines this rights approach to social policy. As a result, countries are left with benefit complex phenomenon and outlines some of its roots plans that do not provide the participatory processes and technical and impacts. It also argues for the need to incorporate a criteria that would make chosen priorities legitimate. rights-based approach to health policy as a foundation to societal efforts to achieve universal health coverage. Latin America’s population is ageing fast and the incidence and prevalence of non-communicable diseases is rising while advances in (costly) medical technologies become available. These factors exercise pressure over health systems’ spending and service delivery capacity, The Determinants of Health Litigation challenging their financing and ability to address the more complex health needs of the population. If health systems are not able to respond The process of democratization in Latin America, which began in the 1980s, adequately to these pressures, the trend of increased judicialization of led to many constitutional changes. These revised and new constitutions health services is not only likely to continue, but to increase. give citizens guaranteed rights, including the right to health. In addition, several also describe the government’s role regarding the provision of basic social services and direct the allocation of public resources to fulfill these obligations. In cases where citizens believe that their rights are being denied, most constitutions ensure judicial protection (writ of protection) fairly easily and with little cost. The writ of protection not only protects the individual’s constitutional rights, but also allows the Judiciary to safeguard the constitution itself. Through the jurisprudence created while ruling writs of protection, Latin American courts have assumed an active role in interpreting and protecting those rights. On several occasions, court rulings have forced the Executive to redefine its policies. This context has led individuals to use writs to 1 The Evidence I II Information available on the number, nature, and costs of cases, as well Litigation to enforce No litigation access to essential needed to as on the socio-economic characteristics of the plaintiffs is incomplete, Yes services enforce access thereby limiting a comprehensive analysis of the phenomenon. Essential Nevertheless, the data available suggest a worrisome tendency of Service increasing judicialization in the seven countries being studied and provide Litigation to request No litigation useful information on the overall nature of the phenomenon. No access to new / non but inappropiate essential services access to services The phenomenon of health judicialization impacts not only III IV government budgets, but also affects the process in which health No Yes resources are allocated. While rights-base health litigation can be Access to Service used for different purposes, such as environmental health, litigations demanding access to curative health care are by far the most frequent (Quadrant I in Figure I), while the latter reflects a direct conflict with in the region.1 Most of these lawsuits affect only one plaintiff (inter the priorities established in the list of essential services (Quadrant IV in partes), and therefore do not necessarily affect the entire population Figure I).2 The existing evidence clearly shows that some non-essential (erga omnes). medications appear as common sources of litigation throughout the region.3 In Brazil, federal financial resources spent on paying claims ordered by the courts increased by almost 40 times between 2005 and 2010. The Less common are those litigations and court decisions that can Ministry of Health reported that, in 2010, payments on medications affect the overall health system’s structure and/or functioning. These at the federal level alone totaled approximately US$550 million. Data refer to rulings ordering the executive and/or legislative branches from seven states account for 240,000 cases. The State of Sao Paulo of government to modify health policies in order to enhance the alone paid US$380 million on claims for high cost medications, or 50 protection of the right-to-health. In Brazil, for example, a public hearing percent of its entire annual budget for exceptional medications. called by the Supreme Federal Tribunal led to the approval of a reform of the decision-making process used to determine the essential list of In Colombia, the Ombudsman’s Office estimates that there were 95,000 services. In Chile the Constitutional Tribunal declared unconstitutional writs of protection in health in 2010, making it the most protected risk-adjusted premiums affecting almost three million individuals. The fundamental right in the country. The Ministry of Health estimates Court entrusted its redress to the legislative and executive branches of that in 2009, the direct cost of litigations reached US$300 million government. in the Contributive Regime alone, which is directed at the formally employed and has a more comprehensive essential list of services than In Sentence T-760 of 2008, the Colombian Constitutional Court calls the Subsidized Regime. for structural changes in the health system. According to the Court, the regulation of the health system was flawed and, therefore, ordered It is estimated that there have been 4,000 accumulated writs in health the Executive to amend it. The Court also ordered the adoption of a in Costa Rica since 1989. Between 1989 and 1998, there were 179 unified essential list of services for children under 18, and a posterior health cases against the Costa Rican Social Security Institute (CCSS). unification of lists for the rest of population, to be implemented Between 1999 and 2008, that number had increased to 2,524. according to resource availability. Following this ruling, the Colombian health authorities reviewed the regulatory framework, and began the In Argentina, where judicialization occurs mostly in the social security progressive unification of the essential lists of services. subsystem, only one court in the city of Buenos Aires received 1,159 cases during 2007. Uruguay still has a low, but growing, level of Finally, preliminary evidence suggests that litigation might not be judicialization, with 34 of the 40 litigation cases of the last ten years currently used by those most in need. In Brazil, the majority of writs occurring in the last two-and-a-half years. take place in states with the highest human development index, and the largest proportion of claims in the City of São Paulo originate Litigation is used to obtain access to both essential and non- from the neighborhoods with the lowest levels of exclusion or social essential services (see Figure I). This distinction is important, vulnerability. Similarly, for Argentina: the majority of writs in the City as the former detects deficiencies in the administration and of Buenos Aires are not claims from low income areas. In Colombia, the delivery of essential services and errors in the prescription of drugs number of writs of protection filed in the Contributive Regime, was six 1 For the purpose of this paper medical malpractice lawsuits are not considered human rights litigations. 2 Examples include the case of branded medications when its generic alternative is in the essential list; new health care technologies or life-saving medications without a clinical alternative in the essential lists; and services without evidence of clinical effectiveness that are infrequently claimed. 3 Examples include Rituximab, for cancers, Imiglucerase for rare diseases or Insulin Glargina for diabetes. 2 times higher than in the Subsidized Regime. addressing a real and legitimate problem of the region, the inequitable access to health services and inputs, it may be, unintentionally, Concluding Discussion generating a different type of inequity, and/or reinforcing existing The tension between the judiciary and health authorities, generated ones, as those that already have better access to health are also likely to by the judicialization of the right to health, occurs in many countries of have better access to the judicial system. Second, the lack of collective the region independently of the judicial model or type of health system actions (erga omnes) may generate horizontal inequities, that is, equals adopted. Several factors help explain this fact. First, public demands have being treated differently. changed from the solution of public health issues to the delivery of timely, high quality, and service-oriented health care. Second, constitutions and The phenomenon of judicialization may also have efficiency notions of the State have also changed, creating a fertile ground to accept consequences, as it may lead to an increase of investments in health citizens’ demands. Third, growing public demands are being met by an care technologies that otherwise might not be prioritized. Therefore, increasing judicial activism, that is, by courts willing to study such demands. is the process of judicialization creating a context in which courts Fourth, health systems maintain prioritization and resource allocation are, in some cases, de facto defining health sector priorities? While processes that still lack technical validity, transparency, participation, and the answer to this question is not clear, the fact is that the process is accountability. Finally, demographic and epidemiological transitions are generating a different and evolving relationship between the Judicial shaping the population’s clinical needs while a larger and more expensive and Executive powers. array of health care technologies are available to face such needs. Some court rulings have systematically favored the concept of the It is evident that right-to-health litigation has held governments treating physician over the opinion of peer clinical experts or the accountable for their constitutional duties and provided access for clinical protocols of the health authority. This positioning poses three thousands of individuals to administrative or judicial mechanisms to main risks: enforce their rights. According to the courts, arguments solely based • It may force the system to deliver drugs/services for which there is on resource constraints may hide inefficiencies, incapacities, or even no evidence of its clinical effectiveness. corruption and, hence, cannot be accepted to deny access to care. • Medical opinion could be biased because of conflict of interest on Litigation has also raised awareness among all members of society the part of the treating physician. of individual rights and the government’s responsibilities. The • The limited technical capacity of the courts might lead to traditionally discretionary authority of the Executive branch suboptimal decisions for society as a whole, given the opportunity of government to allocate public resources is now being held cost of no delivery of other services. accountable for its decisions. Furthermore, judicialization has allowed for democratic deliberation to have a role in policy design and In summary, medical autonomy needs to be balanced with the fact monitoring, reinforcing checks and balances, foundational elements of that in complex clinical cases an individual medical opinion may not a democracy. In fact, achieving universal health coverage will require necessarily be the most suitable. a participatory dialogue to legitimately decide resource allocation and technology. Increased transparency and accountability will not only It is still early to quantify all these effects and developing fair, improve human rights protection but ultimately will also strengthen transparent, technically sound, and progressive priority setting health systems. processes is at the top of the next generation of policy challenges that Latin American health systems face. Better data, improved information There are, however, two main equity-related concerns that arise from systems and future research on these issues are needed to tackle the process of judicialization in health. First, access to justice, like access these challenges and to fully understand the direct financial impact to health, is unequally distributed because is conditioned by socio- as well as the opportunity costs associated with the overall process of economic factors. Thus, while the process of judicialization aims at judicialization. The experience of these seven Latin American should draw the attention of other developing countries within and outside the region, particularly now when many are committed to expanding population and service coverage. Courting social rights is an increasingly common global phenomenon with cases arising both in common and civil law countries, and in insurance and non–insurance based health systems. Furthermore, the greater the success of the citizenry demands, the greater the possibilities of extending the intervention of the Judiciary to other areas besides health. In this sense, promoting a fluid dialogue between consequentialist and deontological approaches and between human rights and health systems views will certainly be beneficial. 3 Bibliography Advocacia Geral da União. (2011), “Intervenção Judicial na Saúde Pública. Panorama no Âmbito da Justiça Federal e Apontamentos na Seara das Justiças Estaduais,� Working Paper, Consultoria Jurídica/ Ministério da Saúde Alfonso, E. 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