Judicialization of Health Rights in Colombia and Brazil: A Comparative Analysis of Courts' Approaches to Experimental, Excluded and Included Medicaments and Technologies

Resumen

The judicialization of health rights in Colombia and Brazil has significantly influenced health policies and resource allocation. This article compares the judicialization of health rights in these countries, focusing on courts' approaches to experimental, excluded, and included medicaments and technologies. Using a qualitative and comparative methodology, the study reviews literature and jurisprudence to examine legal frameworks, judicial precedents, and empirical evidence. The analysis addresses four areas: the general context of judicialization, court considerations for experimental technologies, services and medicaments not included in the basic health plan, and those included. In Colombia, courts follow a "negative list" framework, granting access to most health services unless explicitly excluded. Brazilian courts, guided by constitutional mandates, often favor patient access, relying on public health institutions' technical assessments. The study concludes that judicialization has advanced health rights but also posed challenges to health system sustainability, equity, and balancing individual rights with public health. Addressing these challenges requires strengthening health technology assessment processes, fostering inter-institutional dialogue, and implementing systemic reforms for equitable access. Additionally, internal judicial reforms and external health system and policy reforms are essential for a sustainable and equitable system, emphasizing interdisciplinary dialogue, data transparency, and clarity in normative and political premises.