High- and middle-income countries in Latin America have taken important steps towards the recognition of the right to health and towards universal health coverage (UHC). In the last two decades, however, the same countries (e.g. Argentina, Brazil, Chile, Colombia, Costa Rica, Uruguay) have seen a sharp increase in rights-based litigation to demand access to medical treatments not covered by the state, and the region now has the highest proportion of rights-based litigation in the world.
As countries progress towards UHC, they have had to make difficult choices about how to prioritise limited health resources. Institutional priority setting (IPS) is crucial to ensure transparent, consistent, and fair decisions, particularly in a region facing multiple health needs. The litigation of health rights, however, can threaten IPS, equity, the financial sustainability of the system, and ultimately efforts to achieve UHC. (Although some commentators have suggested that litigation can play a role in advancing the right to health when existing policies fail to uphold this right).
In this paper I examine the case of Chile, a country that has recently joined the wave of rights-based litigation in Latin America. Despite having implemented three IPS schemes (Plan of Explicit Health Guarantees for health care, Ricarte Soto Plan for high-cost diseases, and High-Cost Drugs Committee for cancer medicines), the number of litigations has risen from 23 between 2014-2018, to 87 in 2019. To date, 85% of these legal claims have received favorable rulings with costs to the state rivaling the budget of the mentioned IPS schemes. Drawing on local data, I discuss some causes that are common to the region, as well as particularities of the Chilean case: most litigation involve relatively new high-cost drugs (for cancer and rare/orphan diseases) not included in IPS plans, greater expectations regarding health care, and strong pharmaceutical lobby.
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