Right to health, essential medicines, and lawsuits for access to medicines – A scoping study

Despite countries' efforts to ensure access to essential medicines, some people do not have their needs met, and often resort to the Judiciary to get access to the medicines they need. This phenomenon, known as “judicialization of access to medicines”, has aroused the academia's interest in law, health and social fields. In this context, this scoping study investigates, through qualitative thematic analysis, the approach to judicialization of access to medicines (normative or social) and its possible impacts (positive or negative) described in articles published in scientific journals indexed in the main health databases prior to July 2012. 65 of 384 papers met the inclusion criteria of focusing on lawsuits for access to medicines or judicialization of access to medicines as a phenomenon; empiric studies, review articles or theoretical discussions, written in English, Portuguese or Spanish; most of them were about Brazil, Colombia and England. Results show that judicialization is a complex phenomenon that involves technical-scientific, legal and social aspects. The judicialization impacts mentioned have changed over time. In the late 1990s and early 2000s the emphasis of positive impacts predominated both on the normative and social approaches, having as main reference the movements that claimed from the States the guarantee of access to HIV/AIDS treatment. In the mid-2000s, however, there was an emphasis of the negative effects of judicial intervention, when lawsuits for access to medicines became a problem in some countries. Few studies used the social approach to judicialization. For this reason, there is not enough information about whether lawsuits for access to medicines are related to a real recognition of the right to health as an exercise of citizenship. Such aspects need to be further studied.