A efetivação do direito à saúde no Brasil e na Colômbia : uma análise comparada na perspectiva histórica e da judicialização da saúde

Abstract

This study aims to analyze the effectiveness of the right to health in Brazil and Colombia. These are countries whose current Constitutions were constructed at the same historical moment - Brazil in 1988 and Colombia in 1991 - from a process of democratic rupture in the face of human rights violations and profound social inequalities. The right to health, however, was recognized differently in the two constitutions and their health systems assumed distinct models. The theoretical-methodological framework of the investigation relied on assumptions that aimed to guide the debate and bring the two cases closer together in terms of an external scenario of forces and interests and an internal scenario of inequalities and permanent struggles for rights. We discussed the mechanisms for protecting the right to health as a fundamental human right; the organization of health systems and their relationship with social protection systems and aspects related to justice and the judicialization of politics. At the same time, the construction of the methodological approach and definition of the comparative strategy and analysis categories sought contributions from Social Sciences, Political Science, Comparative Health Systems and Comparative Law. Data and information collection involved 1) documental analysis, narrative review of the literature and search for economic, social, epidemiological, health expenditure and health judicialization indicators; 2) interviews with key-actors in the processes of health reform and judicialization of health. The treatment of data and information included content analysis combined with critical discourse analysis, in addition to the construction of timelines, temporal graphs and correlation tests. Despite the specificities of each legal order and profiles of the Supreme Courts, it can be said that the judicialization of health is both a challenge and a way of realizing the right to health. It became part of the daily lives of both health and justice systems and play a protective role against the risk of catastrophic expenditures for surgical care. The characteristics of the phenomenon express and reflect the structural issues of society and the organization and care model of the SGSSS in Colombia and the SUS in Brazil. The hypothesis of the study that the SUS would be approaching the Colombian system was confirmed. Both countries are moving towards universal health coverage (UHC), a proposal defended by multilateral organizations, which involves financing through pooling of funds to achieve an alleged health coverage for the population, based on health insurance differentiated by payment capacity, provided by private providers. Colombia can be considered as a prototype of this model, because, although its health reform took place at the same historical moment as Brazil and from the same external context, due to a correlation of internal forces, the scope of the right to health was reduced. SGSSS assumed a privatizing nature, with a predominance of private insurers and providers; weakening of public providers and the regulatory capacity of the State; segmentation of the population into regimes, with unequal access; prioritization of the financial sustainability of private insurers and a care model based on individual insurance. Brazil, in turn, based on the strength of the Sanitary Reform Movement, managed to curb external pressures and the SUS was created as a universal and free system, based on equity and integrality. The policies implemented below, however, mischaracterized the System's proposal and placed it back on the trajectory of UHC. SUS faces chronic underfunding; low investment in public infrastructure; permanent and diversified entry of the private sector in the provision of services, with increasing dependence on their use by the public sector; naturalization of double coverage and access and entry of international capital.

The UHC proposal sounds efficient as it promises to cover the entire population, reduce inequalities and reduce people's risk of catastrophic expenditures. On the contrary, the study of the cases of Brazil and Colombia reveals that UHC does not guarantee access and that this model leads to the privatization of health systems at different levels, deepens inequalities, reinforces a model of individualized care, moving away from the constitutional idea of a fundamental and universal right to health.