The Judicialization of Health in Brazil: Challenges and Perspectives after the Supreme Federal Court's Binding Precedent 61

A Judicialização da Saúde no Brasil

Health is a fundamental right guaranteed by the Brazilian Federal Constitution, but its realization has been a constant challenge for the Unified Health System (SUS). In this context, the judicialization of health has emerged as a significant phenomenon, where citizens turn to the Judiciary to ensure access to treatments and medications not provided by the public system.

Binding Precedent 61 of the Supreme Federal Court (STF) emerges as an important milestone in this scenario, seeking to balance the individual right to health with public policies and efficient resource management.

Binding Precedent 61 establishes that the judicial granting of medications registered with ANVISA, but not incorporated into SUS dispensing lists, must follow the theses established in the judgment of Theme 6 of General Repercussion (RE 566.471). This decision aims to create clearer and more rigorous criteria for the judicial granting of medications, especially high-cost ones.

One of the main challenges faced by the Brazilian health system is the provision of innovative and high-cost medications. Drugs such as Spinraza (for Spinal Muscular Atrophy), Zolgensma (also for SMA), and Trikafta (for Cystic Fibrosis) are examples of treatments that, although approved by ANVISA, are not immediately available in SUS due to their high cost and the need for cost-effectiveness evaluations.

The application of Binding Precedent 61 has significant implications. On one hand, it protects the health system from demands that could compromise its planning and budget. On the other, it establishes criteria that may make it difficult for patients to access potentially life-saving treatments in specific cases.

The criteria established by the precedent include the need to prove the effectiveness of the medication, demonstrating that the patient cannot afford the costs, and the absence of therapeutic alternatives offered by SUS. These requirements aim to ensure that judicial intervention occurs only in cases of real need and within the possibilities of the public health system.

However, the implementation of these criteria is not without challenges. Assessing the patient's financial capacity, for example, can be complex and subjective. Additionally, proving the ineffectiveness of treatments offered by SUS can be a lengthy process and potentially harmful to patients with severe and progressive conditions.

The impact of Binding Precedent 61 on access to innovative medications is a topic of debate. While some argue that it may restrict access to potentially life-changing treatments, others see it as a way to protect the sustainability of the health system and ensure a more equitable allocation of resources.

A positive aspect of the precedent is that it may encourage greater efficiency in the evaluation and incorporation of new medications by SUS. Judicial pressure can serve as a catalyst for the health system to accelerate its processes of evaluating and incorporating new technologies, benefiting a larger number of patients in the long term.

However, it is important to recognize that the judicialization of health is a symptom of broader challenges in the Brazilian health system. Issues such as chronic underfunding, inefficiencies in management, and regional disparities in access to health services continue to be fundamental problems that require attention and structural solutions.

In conclusion, Binding Precedent 61 represents an important effort to balance the individual right to health with collective needs and budgetary limitations of the public system. However, its effectiveness in improving access to health in an equitable and sustainable manner will depend on how it is interpreted and applied by the courts, as well as how the health system responds to the challenges of incorporating new technologies and medications.

The path to a fairer and more efficient health system in Brazil requires not only legal adjustments but also a continuous commitment to strengthening SUS, investing in research and development, and seeking innovative solutions that can expand access to quality treatments for all Brazilian citizens.