The Healthcare law Review – Brazil 2018
Pursuant to the 1988 Brazilian Constitution, health is a fundamental social right of every person (Article 6) and a duty of the state (Article 196). In Brazil, the constituent power has melded health with social security and afforded universal, gratuitous and equal access to the public health system to all, with no distinction whatsoever. It is correct to state, thus, that in Brazil, individuals have the subjective right to demand free access to the public healthcare structure, and it is an obligation of the state to provide it.
The Constitution determines that health actions and services have public character and it is within the public power’s responsibility to regulate, supervise and control them. Their execution, on the other hand, may be carried out by the state (directly or indirectly, through third parties via a public contract) or by private parties on their own (Article 197).
The institutional mechanism whereby the public power materialises (or seeks to materialise) ample access to health is the Unified Health System (SUS). The SUS’s legal basis is composed mainly of: (1) the Federal Constitution, (2) Law No. 8,080/1990 (the Organic Health Law) and (3) Law No. 8,142/1990.
Under the Federal Constitution and the Organic Health Law, all entities of the federation (union, state, federal district and municipalities) are bound to the SUS and must cooperate with actions and resources to render health services. Also, they are joint and severally liable with respect to healthcare.
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