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Can Public attorneys Improve Health Equity Through Right to Health Litigation? A Case Study Of The City Of Sao Paulo

quarta-feira 27 de Julho de 2011, por Daniel Wei Liang Wang

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1. Introduction

The exponential growth of litigation based on the constitutional right to health in Brazil in the past decade has raised a heated debate. On one side are those, mostly lawyers, who believe that litigation is a legitimate and positive instrument to force a recalcitrant executive to comply with the right to health included in the 1988 constitution (Piovesan, 2008). Others, however, usually public health experts and government officials, claim that litigation distorts health policy and produce a negative and regressive impact on health budgets (Vieira and Zucchi, 2007; Chieffi and Barata, 2009, Ferraz 2009, 2011a and 2011b). Their argument is twofold: (1) litigation tends to benefit a privileged socio-economic minority in the population who have easier access to information (“rights awareness”), to legal assistance and therefore to courts; and (2) litigation often forces health policy authorities to divert scarce resources from comprehensive health programs that benefit the majority of the population to health services (often new and expensive drugs) that benefit mostly this litigation-active minority.

There is growing evidence confirming the argument of the anti-litigation camp, especially in the city of São Paulo (Vieira and Zucchi, 2007, Terrazas, 2008, Chieffi and Barata, 2009) but also in Brazil more generally (Ferraz, 2011a and 2011b). It shows that litigation is overwhelmingly higher in states, municipalities and districts where socio-economic indicators, and health conditions as a consequence, are better. It also shows that the bulk of the health expenditure incurred by government through litigation concentrates on new and often imported drugs for conditions that are not highly prevalent, or a priority for the least advantaged groups (Norheim and Gloppen, 2011).

But is this an inevitable state of affairs or can litigation ever be transformative? One finds in the literature significant enthusiasm with the potential transformative impact of litigation. Some argue that courts can (again, potentially at least) provide an important institutional voice for the poor and promote health equity either directly (i.e. if access to courts is extended to the least advantaged) or indirectly, if litigation, albeit started by privileged elites, induce structural policy reforms that end up benefiting the population as a whole (Gargarella, Domingo and Roux, 2006; Gauri and Brinks, 2008).

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por Daniel Wei Liang Wang

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