Judicialización y acceso a tecnologías sanitarias: oportunidades y riesgos

Use of litigation to ensure and guarantee access to medical inputs constitutes one of the most effective strategies to ensure observance (or remedy the violation) of the right to health, often in relation to other fundamental human rights such as the right to life or to bodily integrity. More frequently, and in multiple national contexts, judges and courts support lawsuits filed by individuals who need immediate access to health technologies. On many occasions, the rulings that force the State and its institutions to guarantee the supply of a given product do not take into account the reasons the State gives for not providing it, which can range from cost-effectiveness calculations and evaluation, to public policy planning and implementation. Use and abuse of legal proceedings by interested third parties threaten the legitimacy of an instrument that has contributed, without a doubt, to strengthening public engagement in the defense of people’s rights, including the right to health. This document is an attempt to provide a context for the evolution of this phenomenon with regard to the instruments, mechanisms, and procedures commonly used by health authorities to efficiently organize access to health technologies. In addition, steps to follow are suggested for both national and regional settings.