- The number of health right litigation cases Latin America has increased since the 1990s.
- Lawsuits may provide individuals access to health services, but can also impact the ability of the State to deliver services to the population at large.
- Key judiciary stakeholders at the regional and national level met for the first time to discuss the impact of litigation on the public health system at the first High-Level Symposium for Supreme Court judges in San José, Costa Rica.
September 12, 2011―Mr. Soobramoney, a middle-aged gentleman, living in South Africa, suffered from chronic renal failure and desperately needed dialysis. Though the state provided public health care, because of its limited resources, they prioritized patients who had a higher chance for success from treatments. Mr. Soobramoney was a poor candidate and therefore placed at the back of the queue.
Mr. Soobramoney managed to receive treatment from a private medical facility until his family’s funds ran out. After that, he went to the state hospital where again, he was denied care. He sued, stating that the Constitution guaranteed him the right of access to health care. The court ruled that in the case of Mr. Soobramoney, his rights were not violated. They recognized that the state was working with a limited budget and had to prioritize who could be treated. They concluded that the hospital’s decision to deny treatment had been reached in a rational and non-discriminatory way and therefore the state had fulfilled its duty to take measures to realize the right of access to healthcare.
Mr. Soobramoney died shortly afterwards.
A Global Legal Issue
Though Mr. Soobramoney‘s case, presented by former Justice of the South African Constitutional Court and human rights activist, Albie Sachs occurred in South Africa, many countries in Latin America are facing similar dilemmas. The number of health right litigation cases in the region has increased since the 1990s. While lawsuits may provide individuals access to health services, it can also impact the ability of the State to deliver services to others, thus affecting the collective dimension of the right to health, distorting the allocation of resources, and potentially even deepening inequality.
Brazil has around 40,000 litigation cases per year, with a cost of around $ 1.2 billion while Colombia has around 100, 000 cases per year. As noted in a 2010 World Health Report, pooled funds will never be able to cover all the costs of the services needed for all the population. As a result, countries are faced with hard choices on how best to use available funds.
Judiciary Comes Together to Solve the Issue
Despite the pivotal role of judges, they have typically not been part of the discussions on the right to health and the improvement of the equity and efficiency of health systems. Recognizing the need to bridge this gap, the World Bank Institute (WBI) identified key stakeholders at the regional and national level, and jointly with the Inter-American Court of Human Rights (IACHR), and the President of the Peruvian Constitutional Tribunal delivered the first High-Level Symposium for Supreme Court judges in San José, Costa Rica on June 23-24, 2011.
27 participants including Supreme/Constitutional Court Presidents and judges, as well as academics and development partners attended this closed-door event held at the IACHR. It was the first time that judiciary at this level came together to discuss the impact of litigation on the public health system.
Dr. Leslie Van Rompaey, President of the Supreme Court of Justice of Uruguay stated, “WBI’s work with the different stakeholders (doctors, judges, ministries of health officials) who are dealing with similar issues will help us accumulate knowledge, skills, and practices that will serve us in the future to balance the solution of the right to health with financial sustainability of the health system.”
Constitutional judges and international experts discussed and debated the legal rights of an individual versus the progressive realization of the right to health for all, and the binding constraint of public resources in health systems. During the workshop participants had the opportunity to learn about the latest information on the effectiveness of certain recent and high-cost technologies and pharmaceuticals, as many of these are now frequently claimed by individuals litigating in Latin American Courts. They compared experiences from other countries and how they have managed the process of priority-setting in the presence of such individual claims.
“Through the dialogue, we’re laying the foundation to improve health systems,” said Dr. Leonardo Cubillos-Turriago, team leader of WBI’s Regional Initiative on Priority Setting, Equity and Constitutional Mandates in Health, who organized the Symposium. Currently, members of the judicial and executives branches from Argentina, Brazil, Chile, Colombia, Costa Rica, Peru, and Uruguay are participating in this initiative.
“Coming together has allowed us to think through how our decisions impact the health system and bring new concepts to our attention.” said Dr. Ana Virginia Calzada, President of the Constitutional Chamber of the Supreme Court of Justice of Costa Rica.
These discussions will guide subsequent multi stakeholder coalition building efforts in the region. This event was a critical milestone and completed the first phase of the Initiative’s program. It was preceded by eleven knowledge events.
As a continuation of these discussions the President of the Supreme Court of Uruguay and Ministry of Health officials will meet for the first time at an unprecedented National Meeting in Uruguay on September 19th and 20th.