The Right to Health, Public Policies and Inequalities in Brazil : Equity as the Fundamental Principle (Direito à Saúde, Políticas Públicas e Desigualdades Sociais no Brasil: Eqüidade como Princípio Fundamental)

This paper discusses the right to health recognised in the Brazilian Constitution of 1988 and the growing judicialization of health in Brazil that followed, i.e. the growing number of court orders requiring the state to provide to individual claimants health products and services not included in the state health policy. We claim that the conception of health adopted in the constitution is wider than simply healthcare, including the so-called social determinants of health such as basic sanitation, education, housing conditions, income etc. As a consequence, the guarantee of the right to health depends on social and economic comprehensive policies that go way beyond the mere provision of healthcare. We then discuss the principles of equality and universality of access adopted in the constitution and claim that, given the fact of resource scarcity, equity must be the fundamental principle to guide the formulation of health policies and allocation of these resources. In that context, we argue that the Brazilian courts interpretation of the right to health as an individual and absolute right to any health care needed by the claimant, irrespective of its costs and without any regard to the comprehensive health policy and resource allocation made by the state, harms the principle of equality and universality established in the constitution. This is because the resources diverted from the health budget to comply with the judicial orders go to a necessarily restricted group (those who go to the courts, often the middle classes) and comes out of the pot that serves the population who uses the public health system, mostly the poor. Given the widespread scepticism in the legal professions in Brazil about resource scarcity, often perceived as an excuse of the state not to invest more in health, we present a simulation of the costs that this interpretation of the right to health would require to fund the universal treatment of two diseases (chronic viral hepatitis C and rheumatoid arthritis) affecting a meagre 1.9% of the population with the best treatment available in the market. The result shows that the health budget would have to be more than doubled simply to cover these two treatments