Trusting judges: a socio-legal inquiry about access to health care via litigation in Brazil

In 1988, the Brazilian Constitution enshrined in its text the right to universal health care, which formed the basis of the public health system, SUS. However, since the 90s the country observed an increasing trend of citizens starting legal action against the State to get access to drugs, treatments and medical devices not offered by SUS. The stark increase in successful health care cases is today a source of major concern. Against this backdrop, this thesis aims to understand what are the main socio-legal factors that influence the rise of successful litigation for access to health care in Brazil. To answer this question, the thesis provides an in-depth analysis of qualitative empirical data about health care litigation in Brazil, based on semi-structured interviews with 55 actors – with a particular focus on judges and litigants. The main outcome of the research is a middle-range theory about the links between internal and external socio-legal factors that influence the rise of successful health care litigation in Brazil. The thesis argues that there is a complex socio-legal web which combines various types of factors. A central factor which influences judges to grant health care claims is a deep-sited distrust in the quality of the health care public policy and the policy maker, aligned with an individual self-empowerment and tendency to altruism. The result is an attenuated form of judicial activism which uses the substantive constitutional law as a hindsight justification for granting claims. In parallel, a utilitarian trust in the positive outcome of legal action and low costs of litigating incentivises litigants to start legal action against the state. These various factors are analysed in the context of a post-colonial society, where citizens’ individualist approach to the state, and the commodification of health incentivise the multiplication of individual litigation for access to health care.