Procedural and Substantive Judicial Review of the Right to Health in Brazil

• Author: R. Perlingeiro
• Position: Fluminense Federal University (Rio de Janeiro, Brazil)
• Pages: 15-32

PRoCEduRaL and SuBSTanTIvE JudICIaL REvIEw

of ThE RIghT To hEaLTh In BRazIL 1

RICARDO PERLINGEIRO,

Fluminense Federal University

(Rio de Janeiro, Brazil)

This text seeks to identify the objective and subjective aspects of rights to an existential

minimum in health care, based on international parameters which, because they are

restricted to the internal scope of a nation, depend on a constitutional basis and on

comprehensible facts, the demonstration of which should be the responsibility of the

national administrative authority. Regarding the judicial review of the minimum right to

healthcare, this paper points out that it is a serious mistake to try to handle public health

conicts according to the typical judicial principles governing conicts under private law,

because that distorts the public health system, with judicial orders that depart from the

universal access to health care and that are often impossible to comply with. The article

concludes that the judicial review of administrative authorities in matters involving the

right to health necessarily requires simultaneous judicial review of the corresponding

administrative procedures.

Keywords: right to health; eective judicial protection; judicial review of healthcare

policy; enforcement of judicial decisions against administrative authorities.

Recommended citation: Ricardo Perlingeiro, Procedural and Substantive Judicial

Review of the Right to Health in Brazil, 2(1) BRICS LJ (2015).

1 Derived from the following events: ‘Judicialização da Saúde’ (‘Judicial Review of Health Care Policies’),

4th Brazilian Medical Law Conference in Brasília, Federal District, on August 28, 2013; ‘Direito a Saúde

e judicialização’ (‘Right to Health and Judicial Review’), Conference on the 25th Anniversary of the

Citizens’ Constitution in Niterói on October 2013; ‘Judicial Review of Health Care Policies,’ 3rd Brazilian

Conference of the Humanities in Medicine of the Federal Medical Council, Salvador, on October 24,

2013; ‘New Perspectives on Judicial Review of the Health Care Policies in Light of Law No. 12.401,’

Bahian Conference on Judicial Review of Health Care Policies by the Court of Justice of Bahia, Salvador,

on October 31, 2013.

BRICS LAW JOURNAL Volume II (2015) Issue 1 16

Table of Contents

1. Scope of the Expression ‘Judicial Review of Health Care’ on the Contem-

porary Scene

2. New Approaches to the Proviso of the Possible and the Existential

Minimum in Health Care Cases

3. Judicial Review of the Right to an Existential Minimum

4. Misunderstanding of the Distinction between Public Law and Private Law

and Its Judicial Repercussions

5. Final Considerations

1. Scope of the Expression ‘Judicial Review of Health Care’

on the Contemporary Scene

The phenomenon of judicial review of health care, as it has become known in

Brazil, is continuing to grow geometrically.2 It has specic characteristics that are

worth pointing out by way of an introduction. The judicial claims commonly asserted

in this context are not claims for compensation for damages; in most cases, they are

complaints against a public authority’s acts related to the supplying of medicines or

other health goods and services.3 They are basically limited to conicts originating

from acts of the health care authorities or of individuals in the exercise of such

public powers.4 They are essentially public-law conicts, however,5 which cannot

be resolved without constantly weighing public versus private interests.

Recent examples of judicial review of health care show that numerous doubts

persist about how to respond eectively to judicial conicts involving the right to

health vis-à-vis the public authorities.

One such example can be found in the notice published on the website Consultor

Jurídico on June 8, 2013:

2 A preliminary report developed by the CNJ (Conselho Nacional de Justiça (National Justice Council))

points out that there were 240,980 judicial actions related to public health rights in 2011 in the Brazilian

state and federal courts (preliminary data on health care assistance data in the courts).

3 See Ricardo Perlingeiro, O princípio da isonomia na tutela judicial individual e coletiva, e em outros meios de

solução de conitos, junto ao SUS e aos planos privados de saúde, 5(10) R. Proc.-Geral Mun. Belo Horizonte

(RPGMBH) (2012), available at (accessed Aug. 5, 2015).

4 See Ricardo Perlingeiro, A tutela judicial do direito público à saúde no Brasil, 2012(41) Direito, Estado

e Sociedade, available at (accessed Aug. 5, 2015).

5 Regarding the concept of public law based on acts of authority (hoheitliche Gewalt), see Hartmut

Maurer, Derecho administrativo alemán (= 637 Doctrina Jurídica) 52 (Universidad Nacional Autónoma

de México 2012).