Health technology assessment and judicial deference to priority-setting decisions in healthcare: Quasi-experimental analysis of right-to-health litigation in Brazil

Daniel Wang, Natália Pires de Vasconcelos, Mathieu JP Poirier, Ana Chieffi, Cauê Mônaco, Lathika Sritharan, Susan Rogers Van Katwyk and Steven J Hoffman

Social Science & Medicine, 2020, vol. 265, issue C

Abstract: The constitutional right to health in Brazil has entitled patients to litigate against the government-funded national health system (SUS), 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 favor of individual patients and against the health system. The large volume of cases has had a substantial financial impact on the government's health budget and has created unfairness in accessing healthcare. To change courts' behavior, a new health technology assessment (HTA) body – CONITEC – was created in 2011. Its creation was accompanied by an administrative procedure that made decisions about the health system's benefits package more transparent, accountable, participative and evidence-informed. It was expected that this HTA system would bring more legitimacy to the government's priority-setting decisions and promote deference from the courts. This study tests whether Brazil's new HTA system succeeded in encouraging judicial deference by analyzing a stratified random sample of 13,263 court decisions for whether the existence of a CONITEC report resulted in less frequent court orders to provide treatment for individual litigants. The results show that the creation of CONITEC did not change courts' behavior; courts still decide in favor 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 favorable decision after appealing to a higher court. This finding was confirmed through an interrupted time-series analysis that did not find an impact of having a CONITEC report on courts' willingness to override a government priority-setting decision. In fact, CONITEC was rarely cited in court decisions, even when litigants mentioned the existence of a CONITEC report.

Keywords: Health technology assessment; Health rights; Courts; Brazil (search for similar items in EconPapers)
Date: 2020
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DOI: 10.1016/j.socscimed.2020.113401

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