Claiming the Right to Health in Brazilian Courts: The Exclusion of the Already Excluded?

2011 ◽  
Vol 36 (04) ◽  
pp. 825-853 ◽  
Author(s):  
Virgílio Afonso da Silva ◽  
Fernanda Vargas Terrazas

The aim of this article is to test a widespread belief among Brazilian legal scholars in the area of social rights, namely, the claim that courts are an alternative institutional voice for the poor, who are usually marginalized from the political process. According to this belief, social rights litigation would be a means (supposedly “a better means”) of realizing rights such as the right to health care, since supposedly both the wealthy and the poor have equal access to the courts. To probe the consistency of this belief, we analyzed the socioeconomic profiles of plaintiffs in the city of Sao Paulo (Brazil) who were granted access to specific medications or medical treatments by judicial decisions. In this study, the justiciability of social rights has not proven to be a means of rendering certain public services more democratic and accessible.

2002 ◽  
Vol 35 (1) ◽  
pp. 103-125 ◽  
Author(s):  
Candace Johnson Redden

The political importance of rights in liberal democracies, and of universally accessible health care in Canada, are trite observations. However, the increasing use of the language of rights to defend existing patterns of health care in Canada is a curious if not alarming phenomenon. What do citizens mean when they say that they have the right to health care? How can health care rights be defined philosophically and politically? This article examines the increasing popularity of rights claiming for health care, and argues that the ''right to health care'' has a non-possessive, normative nature that is at odds with legalistic individualistic rights claiming. This is a significant philosophical finding, one that informs the political debate over health care by revealing that legal rights claims are not sufficient to defend social entitlements. The conceptual project undertaken in this article illuminates directions of reform and suggests that differentiated citizenship provides a better model than legal rights to guide reform efforts.


2007 ◽  
Vol 14 (4) ◽  
pp. 321-333
Author(s):  
Toma Birmontienė

AbstractThis article highlights some recent developments in the constitutional doctrine of the right to health care in Lithuania, and more in particular the impact of the decisions of the Constitutional Court of Lithuania on the development of health law. The right to health care, enshrined in the Constitution, is both an obligation of the state and an individual right. The Constitutional Court has developed a doctrine of the right to health care, as well a doctrine of certain other constitutional social rights, which is based on the understanding of the close interrelation between the different constitutional rights, the principle of indivisibility and equal importance of these rights, and the presumption of justiciability of social rights. The analysis is based on the jurisprudence of the Constitutional Court. Two cases on the disputes of the legal regulation concerning the pharmaceutical activities are presented in more detail.


2017 ◽  
Vol 66 (2) ◽  
pp. 209-229
Author(s):  
Nicola Posteraro

Questo lavoro analizza il decreto legislativo del 4 marzo 2014, n. 38 sulle cure transfrontaliere. Le norme del decreto sembrano garantire il diritto alla salute, perché stabiliscono che non esiste l’obbligo di ottenere una autorizzazione da parte dell’amministrazione, prima di poter espatriare al fine di ottenere le cure all’estero. Esse, però, al contempo, svantaggiano i meno abbienti, perché approntano un sistema di assistenza indiretta e precisano che gli amministrati possono ottenere il rimborso delle spese sostenute solo nei limiti dei costi che la prestazione avrebbe avuto se fosse stata eseguita nel territorio di provenienza. Inoltre, quando introducono la eccezionale necessità di una previa autorizzazione, attribuiscono alla p.A. un potere fortemente discrezionale. Infine, non chiariscono alcuni aspetti relativi ai procedimenti amministrativi da attivare per ottenere il rimborso e non regolano in modo adeguato i rapporti con il regolamento CE n. 883/2004. Esiste davvero un diritto alle cure oltre lo Stato? ---------- This work analyzes the Italian Legislative Decree of 4 March 2014, n. 38, about the cross-border healthcare. The provisions seem to guarantee the right to health, because they state that the patients have not to obtain an authorization from the administration, before being able to get treatment abroad. At the same time, they disadvantage the poor, because they establish a system of indirect assistance and they specify that individuals may obtain only the reimbursement of the costs that the service would have incurred if it had been performed in the territory of origin. In addition, when introducing the exceptional need for prior authorization, they confer to the public Administration a highly discretionary power. Finally, they aren’t clear when they regulate the aspects of the administrative procedures. Is there really a right to health care over the state?


Author(s):  
Gillian MacNaughton ◽  
Mariah McGill

For over two decades, the Office of the UN High Commissioner for Human Rights (OHCHR) has taken a leading role in promoting human rights globally by building the capacity of people to claim their rights and governments to fulfill their obligations. This chapter examines the extent to which the right to health has evolved in the work of the OHCHR since 1994, drawing on archival records of OHCHR publications and initiatives, as well as interviews with OHCHR staff and external experts on the right to health. Analyzing this history, the chapter then points to factors that have facilitated or inhibited the mainstreaming of the right to health within the OHCHR, including (1) an increasing acceptance of economic and social rights as real human rights, (2) right-to-health champions among the leadership, (3) limited capacity and resources, and (4) challenges in moving beyond conceptualization to implementation of the right to health.


Author(s):  
Lawrence O. Gostin ◽  
Benjamin Mason Meier

This chapter introduces the foundational importance of human rights for global health, providing a theoretical basis for the edited volume by laying out the role of human rights under international law as a normative basis for public health. By addressing public health harms as human rights violations, international law has offered global standards by which to frame government responsibilities and evaluate health practices, providing legal accountability in global health policy. The authors trace the historical foundations for understanding the development of human rights and the role of human rights in protecting and promoting health since the end of World War II and the birth of the United Nations. Examining the development of human rights under international law, the authors introduce the right to health as an encompassing right to health care and underlying determinants of health, exploring this right alongside other “health-related human rights.”


JAMA ◽  
2017 ◽  
Vol 317 (13) ◽  
pp. 1378
Author(s):  
Howard Bauchner

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