Barcellos, Ana Paula de --- "Sanitation rights, public law litigation and inequality: a case study from Brazil" [2017] ELECD 332; in Chaisse, Julien (ed), "Charting the Water Regulatory Future" (Edward Elgar Publishing, 2017) 236

Book Title: Charting the Water Regulatory Future

Editor(s): Chaisse, Julien

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781785366710

Section: Chapter 12

Section Title: Sanitation rights, public law litigation and inequality: a case study from Brazil

Author(s): Barcellos, Ana Paula de

Number of pages: 19

Abstract/Description:

Public law litigation has been used strategically throughout the world to advance human rights. However, I contend that when it comes to health rights, such litigation has been less strategic and has focused primarily on access to pharmaceuticals and medical procedures in hospitals. Important as this approach may be for plaintiffs and for the right to health from an individual perspective, there is a risk that it may weaken health systems as a whole by concentrating health resources into pharmaceuticals and hospitals. More than half of the Brazilian Unified Health Care System (SUS) budget in 2010 was spent on pharmaceuticals and hospital procedures. SUS is the Brazilian national health system, a unified, public, and tax-funded health system, which is in charge of providing health care in a universal basis and free of charge. SUS spending on pharmaceuticals has increased every year since 1998; between 2003 and 2007, expenditure on medicines ‘for exceptional use,’—and usually expensive—increased 252 percent. Health litigation cases have also been increasing in Brazil. In 2002, there was only one health-related purchase made as a result of a judicial decision. In 2011, there were 8,549 purchases, mostly of pharmaceuticals. There is an estimated 90 percent success rate for individual lawsuits that request medicines and medical treatment in Brazilian lower courts. In 2014, the Brazilian Federal Court of Accounts reported that litigation was contributing to the concentration of public health expenditure on pharmaceuticals and medical procedures over other priorities. It can also be argued that successful plaintiffs benefit and receive more from the health system than those who are unwilling or unable to go through the courts, which promotes inequality in a tax-funded and universal health system like the SUS. Furthermore, evidence suggests that plaintiffs are not from the most disadvantaged sectors in the population. I discuss this more fully in the Results and Discussion sections.