More doctors, more problems: exploring Brazil's Mais Medicos program and the legal challenges it has provoked.

• Published date: 22 September 2015
• Author: Cammack, Julia
• Date: 22 September 2015

I. Introduction

Brazil is among the growing number of countries that guarantee the right to health. (1) Its Constitution provides that the state has a duty to implement policies that promote universal access to health care services, with the ultimate goal of improving the health outcomes of all Brazilians. (2) Despite this constitutional guarantee and the creation of the Unified Health Service to facilitate its realization, (3) access to health care services and medical personnel is unevenly distributed across the country, with a high concentration of physicians in wealthier urban zones and a comparatively low density of medical personnel in impoverished urban and rural areas. (4) This uneven distribution of health care services and personnel is reflected in the disparity of health outcomes between the country's economically advantaged cities and its poorer urban and rural areas. (5)

In response to widespread public dissatisfaction with the state of access to health care in Brazil, President Dilma Rousseff introduced the Mais Medicos program in July 2013. (6) The program provides for a range of measures to improve the provision of health care throughout the country; (7) however, the most prominent and controversial component of the program calls for the importation of foreign-trained doctors, primarily from Cuba, to practice medicine in the country's underserved rural and urban regions. (8) Criticism of the program has been widespread and varied, (9) ranging from arguments that it does not solve the long-term problems endemic in the Brazilian health care system (10) to charges by the medical profession that it illegally allows foreign doctors to practice medicine within the country's borders without requiring them to revalidate diplomas received in their home countries. (11)

Given the controversy surrounding the program, it is probable that litigation over its legality, particularly the validity of importing foreign doctors, will determine the fate of Mais Medicos. (12) This Note argues that the Supreme Federal Court's recent jurisprudence, as well as its apparent commitment to challenging the status quo and promoting the rights of traditionally disadvantaged and marginalized members of Brazilian society, indicates that the Brazilian judiciary will likely uphold the Mais Medicos program, including the controversial provision that calls for the importation of foreign medical personnel. At the same time, it also suggests that more needs to be done in the long-term to resolve the health care system's inequities. Part II gives an overview of the constitutional and ideological foundations of the right to health in Brazil and provides an account of the current state of access to health care at both the national and regional levels. Part III outlines the basic measures established under Mais Medicos, focusing on the importation of foreign doctors, and describes the public's response to the program, namely the most ubiquitous criticisms. Part IV considers the likely future of Mais Medicos through the lens of the Supreme Federal Court, first considering past litigation over the right to health in the Brazilian legal system and then looking to the recent string of socially and politically liberal decisions that have defined the court in recent years.

II. "UNIVERSAL" HEALTH CARE IN BRAZIL

A. Constitutional and Ideological Underpinnings

Brazil is one of sixty-nine countries that guarantee the right to health. (13) Its current constitution, adopted in 1988, (14) states that "[h]ealth is a right of all and a duty of the State and shall be guaranteed by means of social and economic policies aimed at reducing the risk of illness and other hazards and at the universal and equal access to actions and services for its promotion, protection and recovery." (15) In furtherance of that right, Brazil's Unified Health System (UHS) (16) was designed to promote four core principles: universality, integrality, decentralization, and equity. (17)

The ideology underlying Brazil's health care system can be better understood by examining the World Health Organization's (WHO) 1978 Declaration of Alma-Ata ("Alma-Ata"), (18) which influenced the formulation of Brazil's constitutional right to health care. (19) Alma-Ata's approach emphasizes "[p]rimary health care 'based on practical, scientifically sound and socially acceptable methods and technology made universally accessible through people's full participation and at a cost that the community and country can afford,"' (20) and "[r]elies on health workers, including physicians, nurses, midwives, auxiliaries, and community workers as well as traditional practitioners, trained to work as a team and respond to [the] community's expressed health needs." (21)

Commentators are skeptical of Alma-Ata's effectiveness in actually implementing its lofty goals and identify a number of factors that have prevented its approach to bringing health care to all from succeeding. In general terms, critics point to Alma-Ata's lack of "workable mechanisms" to carry out its holistic approach to expanding access to health care. (22) Specifically, they say it is "of little use in dealing with the practical health needs of the world's poorest and most disenfranchised citizens." (23) Additionally, Alma-Ata's reliance on community health workers as opposed to traditional practitioners has been stymied by the entrenched interests of the medical profession. (24) These shortcomings are acutely reflected in the case of Brazil.

B. The Current State of Access to Health Care in Brazil

Despite the Brazilian constitution's guaranteed right to health and the pervasive belief that more Brazilians have access to health care than did before enactment of the 1988 Constitution, (25) access to care, and, more precisely, access to medical professionals, remains elusive. Forty percent of Brazilians lack access to primary care and instead rely on hospital emergency rooms for treatment. (26) The most recent statistics indicate that Brazil's physician density is 1.76 physicians per 1,000 people. (27) This number is below the level that the WHO suggests is necessary to meet a country's primary health care needs (28) and falls short as compared to other countries, including other Latin American countries with some form of universal health care. (29) The deficiency in the availability of doctors is likely a driving force behind growing national dissatisfaction with the Brazilian health care system. (30)

Nevertheless, there are indications that the problem is not a lack of doctors in Brazil as a whole, but rather a lack of doctors where they are most needed. The majority of Brazilian physicians reside and practice in the country's major cities, (31) leaving the country's remote rural areas, including the vast Amazon region, and its underserved urban areas (32) with limited access to treatment. (33)

Brazil is not unique in its uneven distribution of health care personnel: the unequal concentration of health workers in wealthier, typically urban areas is endemic throughout the world. (34) In the case of Brazil, this phenomenon is attributable, at least in part, to the low incomes of the populations in poorer, often rural areas, which has deterred physicians from practicing there. (35)

While choosing to practice in wealthier areas can provide personal benefits to physicians and other health care personnel, as well as the populations in those areas, it works to the detriment of those in less desirable regions. Research across countries shows that "imbalanced distribution of health personnel can contribute to great disparities in health outcomes between the rural and urban population." (36) In Brazil, this has been reflected, for example, in the disparity in child mortality rates between urban and rural areas. (37) The implications of these disparities are far-reaching. In fact, some scholars suggest that this difference in the availability of health care and consequently the "health achievement" of Brazilians in poorer rural or urban areas versus their wealthier counterparts casts doubt on the true success of democracy in Brazil. (38)

III. THE MAIS MEDICOS PROGRAM

A. Background

Ostensibly in response to the perceived inadequacies of her country's health care system, (39) namely the availability of doctors to all Brazilian citizens, President Dilma Rousseff announced plans in July 2013 for Mais Medicos (in English, "More Doctors"), (40) a program that, among other things, (41) brings foreign physicians into the country with the broad goal of serving those regions that Brazilian doctors tend to avoid. (42) The decision to turn abroad to find doctors willing to practice in the country's less attractive regions came after efforts to draw Brazilian doctors to those areas proved unsuccessful. (43) The program offers participating foreign physicians three-year contracts in family medicine (44) and pays 10,000 reais (US $4,250) per month, plus room and board. (45) The first Mais Medicos participants arrived in late August 2013, (46) and President Rousseff s initial goal was to import approximately 13,000 foreign physicians by May 2014, some 11,000 of which were to come from Cuba. (47) The deal between Brazil and Cuba was made possible by an agreement between the two governments overseen by the Pan-American Health Organization. (48) The overwhelming reliance on Cuban doctors is unsurprising given Cuba's long history of exporting doctors abroad, a phenomenon known as "medical internationalism." (49)

The government has implemented various rules to control which foreign doctors can legally practice in Brazil under Mais Medicos. (50) Participants must come from countries with a physician density of more than 1.8 physicians per 1,000 people, (51) i.e. countries with a higher physician density than Brazil. According to the Brazilian Ministry of Health, foreign trained doctors must have medical training that meets Brazilian standards, experience in family...