Comparative Health Law Journal

PREFACE OF THE 5TH EDITION

In this 5th edition of our COMPARATIVE HEALTH LAW JOURNAL, we have the honor of publishing contemporary and multidisciplinary reflections on various public and supplementary health issues.

The judicialization of health, unfortunately, is an increasingly present phenomenon in Brazil, the result of patients seeking rights that have been denied. These are rights that they believe are guaranteed by law and the Constitution of the Republic. According to the NATIONAL COUNCIL OF JUSTICE of BRAZIL and it´s “Health Judicialization Panel”, this year we will reach the appalling level of more than 600,000 new lawsuits that will have been filed in the Brazilian courts by the end of 2024. In this scenario, there are important political, philosophical and economic issues to be debated, highlighting the challenge of balancing the individual right to health with the financial sustainability of the public system and mutual health plans.

In some of the scientific papers that are now being published, we will have hard-hitting debates about the roots of this phenomenon, analyzing the impacts of court decisions on budgets and the ethical dilemmas that permeate the allocation of limited resources in a context of growing demands.

Another essential aspect addressed in the magazine is the responsibility of the federal entities in protecting the right to health. Brazil's federative organization imposes challenges in coordinating health actions, often generating conflicts of competence between the Union, states and municipalities. Not only the decisions of our Supreme Court, but also the doctrinal debates lead us to reflect on how public entities can collaborate effectively to guarantee universal access to health, as advocated by the Unified Health System (SUS), promoting a legal and administrative analysis of shared responsibilities.

Regulation of the pharmaceutical market is another crucial issue, considering the impact of drug costs on the health system and on consumers' pockets. Regulatory policies must strike a balance between encouraging innovation and ensuring access to medicines. A specific article will address the role of the National Health Surveillance Agency (Anvisa) and the Medicines Market Regulation Chamber (CMED) in setting prices and controlling abusive practices.

With increasing digitalization, the processing of personal data by Brazilian pharmacies is gaining prominence. There is a need to reflect on the main issues surrounding the General Data Protection Law (LGPD), the collection and use of sensitive information, including health data, and consumer privacy vs. commercial abuse. The analysis made in one of the magazine's articles also includes the challenges for the pharmaceutical sector in adapting to the new requirements, balancing technological innovation with respect for legislation.

The anti-asylum law is approached in the magazine from a historical and contemporary perspective, highlighting its importance in building a more humanized model of psychosocial care. The Brazilian psychiatric reform needs to be analyzed in an interdisciplinary way, verifying the axes of the transformation of mental health care in the country and observing the challenges still to be faced in the implementation of substitute services and the role of society in combating the stigma associated with mental disorders.

Another point on the agenda is the application of the dispute board in administrative contracts signed with private hospitals under the SUS. This conflict resolution mechanism, used preventively, can reduce disputes and ensure greater speed in the execution of contracts that are essential for public health.

The exclusion of dependents from health plans on the grounds of age limits is an issue with a major social impact, especially for families who face difficulties in keeping young adults covered. One of the scientific papers addresses the legal and ethical aspects of this practice, bringing up legal debates, without forgetting the recent court decisions that influence justice and legal certainty in the supplementary health sector.

Finally, this magazine discusses access to new therapies and treatments in the supplementary health sector, highlighting the role of incorporating technologies and updating the National Supplementary Health Agency (ANS) list. It also discusses the challenges faced by patients, operators and regulators in reconciling scientific advances with the sustainability of the sector, addressing the impacts of court decisions in this context and the need for intersectoral dialog to ensure equitable access to innovative treatments.

With the aim of contributing to these debates, we are launching this 5th edition of COMPARATIVE HEALTH LAW JOURNAL, an ongoing biannual publication of the Master's and PHD´s Programs in Medical Law at UNISA in São Paulo, Brazil.

The journal's mission is to promote the enrichment of scientific and academic debate and to widely disseminate quality research based on theoretical and empirical approaches to medical law, fundamental social health rights, and public policies in the field of public health and supplementary health.

We focus on the interdisciplinary field of law, medicine and health, and is open to relevant contributions from other areas of the humanities, social sciences and biological sciences.

It brings together the work of scholars who, in response to the proposal to explore national and international political and legal experience, have directed their efforts to this theme, according to their affinities and specialties, in order to further enrich the debates that require the evolution of comparative law in the area of health.

In addition to the Brazilian jurists who have delved into their respective subjects, we have the participation of the illustrious Portuguese researcher, who returned the theme “The Gonçalves Ferreira reform: the beginnings of a Health System in Portugal”, Professor Filipe de Aredes Nunes, who is an Assistant Professor at the Faculty of Law of the University of Lisbon; and the article entitled “Political, philosophical and economic foundations on the judicialization of health in Brazil” by the Professor of Law at the University of Mozambique, Dr. Armênio Alberto Rodrigues da Roda.

In this issue, we also have the honor of publishing articles by distinguished national jurists: the eminent Justice of Brazilian´s Supreme Court André Mendonça (STF), Clarice Alegre Petramale, Marcus Carvalho Borin, Silvia Márcia Bruschi Kelles, Georghio Alessandro Tomelin, Graciela Amaya, Leandro Sarcedo, Leonardo Massud, Márcia Walquíria Batista dos Santos, Deborah Alessandra de Oliveira Damas, Ricardo Dal Pizzol, Matteo Souza Gall, Wandemberg Venceslau Rosendo dos Santos, and Natália Aurélio Vieira.

We are grateful and honored to have been able to publish this important work.

Enrique Ricardo Lewandowski

President of the Editorial Board

Georghio Alessandro Tomelin

Editor-in-chief

Richard Pae Kim

Editor-in-chief