In Brazil, the integral right to health is an obligation of the state, written in the federal constitution, and it depends on the creation and implementation of public health policies. Brazilians have, since the 1990s, resorted to the judicial system in order to have access to medications and other health goods and services . This phenomenon is called health judicialization, and drugs are the most requested good [2,3,4]. The causes of this phenomenon are flaws in health policies and insufficient funds for the state to meet the growing demand for health care .
To guarantee the effectiveness of the right to health, the Brazilian justice system established state and nonstate institutions. The former are organized into three branches: judiciary, executive, and legislative; and the latter are composed of other institutions, one of which is the public prosecutor’s office. The public prosecutor’s office is an entity that is not within these powers. It has the role of inspecting and protecting the fundamental principles and interests of society and filing lawsuits when such interests are not maintained; it is essential to justice .
In health care, the executive branch is responsible for managing the Brazilian public health system—the Sistema Único de Saúde (SUS)—which also guarantees access to essential medicines, guided by the National Medicines Policy  and by other laws and policies that define the medicines in the SUS formulary (those belonging to the official lists of medications of the SUS ). However, the SUS cannot meet the unlimited demands of Brazilians. When the state faces difficulties in offering health services and adequate universal well-being to all citizens, many people seek these rights through the judiciary . Citizens use lawsuits to overcome lack of access to medicines, caused either by the lack of financial resources to acquire them, by their unavailability in the public health service, or by the high cost of treatment. Medicines that treat genetic diseases and cancer that are outside the pharmaceutical care policy represent an important part of the problem [5,10].
In the Brazilian democratic context, on the one hand, health judicialization can express legitimate claims and ways of acting by citizens. On the other hand, it bolsters an imbalance in rights by giving the privilege of obtaining these rights to groups of people who have knowledge about lawsuits and the financial resources to appeal to the justice system .
Some studies show that those who use the judiciary to request a medicine usually come from better socioeconomic conditions, because they can pay for the procedural expenses generated by the judicialization. Thus, this phenomenon privileges certain social segments, favoring those who have greater access to the justice system, and, regarding access to health, aggravates the inequities of a system already marked by inequalities .
The search for a guarantee of one’s right to health services and goods using the courts is not isolated to Brazil; it occurs in other countries, such as Colombia, Costa Rica, and Chile [13,14,15]. What stands out in the Brazilian case is the high rate of the lawsuits deferred by judges, which has sparked discussions between professionals and managers of the health sector, as health judicialization not only can provide a useful mechanism for society to force the state to implement public policies but also can cause negative economic, social, and political distortions .
In economic terms, judicialization creates costly, unscheduled expenses for the executive branch and judiciary. For the executive, the spending in the federal sphere on such judicial demands has increased 1,000% (in the requested items) between 2008 and 2015, increasing from approximately US$32,928,388.75 to US$351,662,404.09, which has displaced the budget for other sectors of the Ministry of Health, such as the supply of drugs to primary care and the treatment of patients with STIs and AIDS; in addition, the Ministry of Health budgets showed a limited variation in this time period, which made planning and managing the public budget difficult . This is a distortion, wherein some are benefiting while others are losing; only those who win in this process benefit while others may lose and/or have no recourse.
For the judiciary, it was observed that spending on lawsuits increased to approximately US$11,319,112,008 (the administrative cost of appeals), which corresponded to 1.2% of the gross national product and was the equivalent of handling an overall procedural burden of approximately 86.6 million cases . In 2011, there were 240,980 lawsuits in the health area, and they were primarily requests for medications .
With regard to social distortions, studies have revealed that lawsuits can deepen the inequity of access to care in a health system already characterized by socioeconomic inequality. Individuals with better socioeconomic conditions, who are not participants of the SUS and are financially able to afford lawsuits, are therefore favored. By favoring a few individuals, lawsuits interfere negatively with the principles of the SUS (universality and equity), because these demands shift resources that should serve the majority (especially those who need it the most) in order to serve a few with smaller needs [3,5,19].
As for political distortions, lawsuits can interfere and cause distortions in the national medicines policy and force the government to provide medicines outside the SUS formulary, with little evidence of their efficacy and safety and which have higher costs.
This may occur due to members of the judiciary and the public prosecutor’s office lacking the technical knowledge to interpret these policies. In lawsuits, there are no trials with competing experts, and the judge decides based solely on the information provided in the plaintiff's request. In this case, the government is not given an opportunity to answer the plaintiff’s demand. The government has to comply with the judicial decision within the deadline stipulated by the judge. Such distortions can compromise the rational use of medicines .
Therefore, health judicialization has created tensions and motivated discussions about its legitimacy and the technical and/or legal and institutional competence of the judicial system to decide about the content and the implementation of the state provision as implemented by the executive branch. In addition, it has caused an increasing number of individual demands for medications that increase public spending [2,3].
To rationalize these distortions, Brazil and other Latin American and Caribbean countries, such as Chile, Costa Rica, Mexico, Peru, Uruguay, and Argentina, have proposed strategies, such as the creation of spaces for discussion between the actors in the health and judicial systems to help in the decision-making process, according to the needs of the population. For this, technical and scientific consultation committees were created to aid operatives of the law before filing a health-related lawsuit. Such strategies have helped in rationalizing finite health resources, creating interinstitutional dialogue between actors in the executive branch and the judiciary, and reducing new judicial demands, but initially this caused an increase in the bureaucratic system [21,22,23].
In Brazil, the creation of the Department of Assessment of Nonstandardized Medicines (Departamento de Avaliação de Medicamentos Não Padronizados, or DAMNP) and the Technical Chamber of Health Assessment (Câmara de Avaliação Técnica em Saúde, or CATS) were strategies deployed by one Brazilian state. The DAMNP was a department created by the executive branch in 2006 to exclusively analyze the technical and scientific rationality of medicines solicited by the users of the public health system by using an administrative case that has a prescription and a medical report. The technical analysis was performed by pharmacists who evaluated the demands according to the norms of policies and national legislation. When the solicited medicine was outside the SUS formulary, the pharmacists suggested its replacement by one belonging to the official lists of the SUS. This strategy was responsible for establishing access protocols to medications by the executive branch and, when necessary, for the inclusion or exclusion of medicines on the official lists of the SUS .
The CATS was created in 2009 by the public prosecutor’s office of the Brazilian state in order to offer technical support to public prosecutors regarding medicines solicited by the users of the public and private health systems . The opinions are from medical experts and pharmacists who analyze the medical prescriptions and report based on medical and scientific criteria and on pharmaceutical policies. Beyond that, these professionals, when possible, can train providers to prescribe therapeutic alternatives made available by the SUS. This has contributed to perfecting access protocols for medicines by the executive branch, suggesting medicines to be incorporated into the policies, cutting down on legal costs, and bringing evidence and expertise to the issue, rather than just having lawyers sort out the matter .
The purview of the CATS was reaffirmed in 2010 when a technical cooperation agreement was signed between the executive branch and the public prosecutor’s office. This agreement decreed that all demands for medicines not included in the official SUS lists would be dealt with by filing an administrative case in the executive branch. Institutionalizing these administrative cases was viewed as a way to reduce the number of lawsuits .
It was noted that these strategies were adopted by jurists and health managers in many Brazilian states and conveyed respect for constitutional principles, such as the right to health as an aspect of human dignity and access to justice [27,28,29]. However, little is known about the effects of these strategies as they pertain to negative repercussions caused by the judicialization of the health system. This gap in knowledge motivates the following question: Do institutional strategies reduce the social, economic, and political distortions that the judicialization of access to medicine brings to public administration?
In this context, the objective of this study was to evaluate the effects of two institutional strategies adopted by a Brazilian municipality in order to confront economic, social, and political distortions that involved the judicialization of access to medicine.