Health Rights In Brazil Appio[121]

HEALTH RIGHTS IN BRAZIL: A JUDICIAL DILEMMA 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 Supreme Court recognized an important social right, a constitutional health right, a right to force the government to supply all the citizens needs with expensive medication and surgeries. In a No matter if you are rich or poor, you have this constitutional social right that can be enforced by the Judicial Power (federal judges).The rich guy lives and the poor guy dies. Why? How can we – in Brazil – support such (unfair) system? Well...it’s a long story. Let me tell you about. We have a strong constitutional basis for a theory about social rights since the 30’s in Brazil. Our history is about social rights, social rights as a fundamental right in our Constitution. Social rights supported directly by taxes and not for contributions as an public insurance for example. Public health were long time regulated in Europe since 1600, with special care about the new cities and the economic development after industrial revolution4. Our 1934 Constitution5 mentioned, for the first time in our political history, some kind of Health Rights, as a part of a comprehensive social security system. This right to medication and treatment supported by the (federal) government arise from a very regulated political community. It’s an important part of the social security system in 1934 and taxes appear as the main economic tool to Buenos Aires in this meeting promoted by Gargarella and other fellows. I believe, essentially, that Judicial Activism is the basic issue right now in Brazil, no matter the subject involved. Health rights is a very popular subject in Brazil (and around the world) cause everyone feels that good medication and accurate medical exams are very expensive. Is this an illusion? Federal government can guarantee the best medical treatment for all 184 million people living in Brazil or just a fair package of services? Why judges (in Brazil) have a different and unique concept about health rights, a fundamentalist view based in moral rights? Is there a wave of populism in Latin America, including judicial populism? I believe that we do have judicial populism in Brazil and this is just part of the problem. We also have industry profits, lobby, conflict of interests among doctors, endemic corruption in the public sector. I’m also concerned about the poor and how they will pay for this bill in a near future. Judicial activism in these matters, is the fastest way to increase medical costs for everyone. Pharmaceutical industry prefer to sell medicines to the federal government, using judicial system, with higher prices an weak democratic control. Governments create a false demand in the market, increasing the industry profits for state-of-art medication and medical exams. In a cost benefit analysis, no one will choose these new medications cause they are too expensive and present shy results. Judges should not create new public policies. They should enforce public policies already created by federal and local government. 4 The “Poor Law” in England, for example, since 1601, regulated public hospitals and medical assistance for the poor. 5

Based on Weimar Constitution (Germany, 1919-1933 - Weimarer Verfassung)

3 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. The 1988 Brazilian Constitution predicts several social rights, such as a right to safety, a right to housing, a right to education and – among others – right to health, which means to say (using our Supreme Court words) a right to have medication and health treatment, including exams, surgeries and expensive medical procedures6. Our article 6 (1988 Constitution) mention that all those rights will be supported by the government (federal, states and local government). There are some remarkable public policies in Brazil, such as enacted a public right to have retroviral medication (HIV – Lei 9.313/1996) 7. In this case – for example – Congress approved a federal statute (act) that guarantee the best treatment and medication for all those patients. Those rights were not created by judges. Congress decided (2005) protect those patients and an important part of the annual budget is bounded up with these rights. Health rights as a social right can not be removed from our 1988 Constitution, cause they’re protected against the amendment process (art. 60, 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 parágrafo quarto, da Constituição do Brasil). Congress is allowed to regulate (statutes) individual/social (constitutional) rights, but can not exclude them from the Constitution. They are considered as a political conquest and nobody disagree about that. The problem is exactly this, cause when no one disagree about the content of this social right, everyone thinks that has the best answer about its extension. The federal government supports a strong textualist view about our 1988 Constitution, which means to say, there are not health rights, but only a government duty. Usually, a constitutional right to health can only be enforced against government, not against private insurers8. The government has to create public policies which attends everyone, rich or poor, cause the same 1988 Constitution says that (article 196) the health rights will be guaranteed under a huge institutional system, the SUS (sistema único de saúde). This SUS is a public system based on welfare principles, which means to say, no one has to pay a single penny to be attended in a hospital. This public system is not an exclusive supplier of health services, cause the same 1988 Constitution tells us that the health services are in fact a public responsibility, which means to say that they are a “public interest”. These services are very regulated by the federal government and traditionally private hospitals and doctors have an agreement with the government. That’s why an important sector of our population does not have any kind of medical insurance (private) or even a social insurance. Even a non-citizen is eligible to receive medical support in Brazil, since he lives in the country. Middle class 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 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. 10

6 generation of medicines and medical exams, such as RMI and transplants, you can not buy such kind of services in large scale individually. The government has to approve its annual budget in Congress and program – carefully – its revenues. People wants to know (previously) how much the government is paying for medical assistance for the population and how much they will have increased taxes. Third – finally – the political difficulty, cause judges (Supreme Court and federal judges) in Brazil are deciding about public policies. They are creating a new system of constitutional rights, cause they believe – or simply say it – that we must follow the rescue principle, which means to say, human life is sacred, so we must save every citizen using best medications and medical exams, no matter the costs and no matter if the government is already providing public services in a comprehensive package12. The Supreme Court invoke the human dignity principle to rule that the government has to pay for the medication and is constitutionally responsible to support all kind of demands. Usually the government is forced by judges to buy expensive medication under fines and even Contempt of Court. Our Supreme Court, recently, ruled that public revenues can be arrested by a judicial injunction as a guaranty in petitioner’s favor. There is no distinction under Supreme Court eyes between rights enacted by federal law (usually federal statutes, as it occurs – for example - with patients HIV positive) and general health rights mentioned in 1988 Constitution. But there are important differences, cause federal statutes are approved by the Congress and the Constitution in interpreted by the Supreme Court. That’s the dilemma. Our Supreme Court has to decide between the Constitutional protection (democracy protection) and natural law protection. There is no 12

The SUS (sistema único de saúde) in Brazil was enacted by Lei 8.080/1990 which regulates the public health services in the country. The federal government is directly responsible to transfer public funds (federal taxes revenues, constitutional duty) to the states and local government. There is a fixed amount in the annual revenues for the Ministry of Health in Brazil. State government and local government are responsible to supply the health services, including expensive medication and medical exams, altogether the most part of those services are supplied by private doctors and hospital which a monthly reimburse (based in public regulation about the prices) from the federal government. The states must allocate at least 12% of its annual revenue to public health (constitutional duty) SUS supplied around 300 million of medical appointments in 2008, 11 millions of surgeries and hospital admissions in 2008, 2,3 billion of clinical procedures (ambulatory) and 9 million patients in chemotherapy (2008).

7 doubt that contemporary Constitutions incorporate several philosophic principles, but Law is different from pure Philosophy. Law tells us about how people decide their conflicts and what kind of legal rules government has to enact to promote and protect our rights. The extension of those health rights depends on a democratic system. My personal view is that citizens should decide about those issues through communities councils in Brazil 13. Judges – including Supreme Court – should guarantee and enforce their decisions, community decisions, even if the elected politicians disagree about those democratic policies. Judges should refuse (dismiss) to decide about expensive medications not mentioned in federal law (statutes). There is a seminal difference between social (collective) rights and individual rights in our contemporary Constitutions. Social rights have to be decided and regulated by the Congress and the Executive Power. Public policies are political tools based on representative democracy. Congress will tell us how to manage the government revenues every year, which means to say, how to distribute public funds among population under a priority scale. Individual rights – such as privacy and life – are supported by the Law (including statutes), but enforced by Judicial Power. In those subjects the Supreme Court is able to adopt an activist approach, since individuals are entitled in constitutional rights. Judges will decide the content of those rights, cause Congress should keep its political focus on collective (social) rights. The Supreme Court – of course – does not have the last word about constitutional interpretation about individual rights, cause (in Brazil) the Constitution can be easily amended in Congress. In the other way, Congress does not have the last and final word over constitutional social rights. Supreme Court can review those same policies and statutes, since the equal treatment clause is violated in Congress, but judges will have to embrace a passivist self-restricted approach in those cases. It means to say, they can rule that some public policies are, in fact, unconstitutional, but they can not decide (by themselves) which is the best alternative14. Judicial activist is a legitimate approach just 13

Our 1988 Constitution ruled that health public policies are subject those communities councils named Conselhos Municipais de Saúde. They were predicted by federal statutes and Constitution, but their decisions are not (traditionally) followed by elected politicians. 14 This is specially important when you have political minorities in your community,

8 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 There is not a final decision about health rights before the Supreme Court but is quite sure that the Court will decide this subject in 200918. After some public scandals involving Deputies and Senators in Brazil, the Supreme Court overruled several past decisions about the Judicial Power role in Brazil. The activists are in charge right now in Brazil. The only problem is that our government already has a huge budget for public health in Brazil and the welfare system is quite strong in Brazil19. Why such kind of judicial activism in a game where poor people are a electoral and political priority? Why our Supreme Court is becoming a populist Court if judges are not elected by the people every four years. Probably because judges – including Supreme Court Justices in Brazil – live in an individualistic world, a world where social justice is a matter of principles and not a subject for policies20.

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.