On November 27, GSL co-published a study in Social Science & Medicine with researchers at Fundação Getúlio Vargas, Insper, and the University of São Paulo. From the GSL side, Investigator Mathieu Poirier and Director, Steven Hoffman were co-authors joining Law School of Saō Paulo professor, Daniel Wei Liang Wang and Assistant Professor of Law at Insper, Natalia Pires de Vasconcelos, among others.
The study investigated whether the 2011 establishment of a health technology assessment agency in Brazil (CONITEC) succeeded in encouraging judicial deference by analyzing thousands of court decisions to see if the existence of a CONITEC report resulted in less frequent court orders to provide treatment for individual litigants.
The constitutional right to health in Brazil has entitled patients to litigate against the government-funded national health system, claiming access to various health treatments including those excluded from the health system’s benefits package. Courts have tended to rely on a single medical prescription to judge these cases in favour of individual patients and against the health system.
With the establishment of CONITEC in 2011 and an effort to make the procedure that made decisions about the health system’s benefits package more transparent, accountable, participative and evidence-informed, it was expected that the move would bring more legitimacy to the government’s priority-setting decisions and promote deference from the courts.
The study, however, has shown that the creation of CONITEC did not change the courts’ behaviour; courts still decide in favour of patients in most cases. Indeed, even when there was a CONITEC report recommending against government funding for a particular healthcare treatment, the vast majority of the relatively few patients who were unsuccessful in obtaining a health benefit at their first court hearing later obtained a favourable decision after appealing to a higher court and CONITEC was rarely cited in court decisions, even when litigants mentioned the existence of a CONITEC report.
Read the full study here.