Why courts in Brazil can order your treatment: the 1996 case that came before the law

By Ramon Martins Andrade, attorney (OAB/RJ 188.374)

Visitors and residents are often surprised to learn that in Brazil a judge can order the public health system, or a private health plan, to provide a specific treatment. The constitutional basis is article 196 of the Constitution, which states that health is a right of all and a duty of the State. The practical basis is older and more concrete: it was built case by case, by patients who went to court before the law existed.

July 1996, day by day

On 4 July 1996, lawyer Áurea Celeste da Silva Abbade, of the São Paulo AIDS prevention group GAPA, filed a claim on behalf of Nair Soares Brito, a teacher and activist living with HIV. She asked for saquinavir, a protease inhibitor, and lamivudine, along with another prescribed medicine. It was the combination therapy the Brazilian public system did not yet provide.

Between 7 and 12 July, the XI International AIDS Conference in Vancouver presented the results of combining protease inhibitors with the antiretrovirals already in use. On 12 July, Senator José Sarney introduced in the Senate the bill that became Law 9.313. On 25 July, Nair received the medicines from the State Health Department by court order, in a decision by Judge Marco Aurélio Paioletti Martins Costa, of the 1st Public Treasury Court of São Paulo. The law itself was only signed on 13 November 1996.

This is not activist folklore. The sequence is documented in a publication of the Brazilian Ministry of Health itself, O Remédio via Justiça (2005), which reconstructs the first Brazilian lawsuits for antiretrovirals. The dates of the bill are in the official records of the Senate and the Chamber of Deputies.

What the sequence proves, and what it does not

It would be convenient to conclude that the law was written in response to that injunction. That is not accurate. The bill was introduced eight days after the claim was filed, but thirteen days before the court decision produced its effect. Courts and Congress moved almost simultaneously, pushed by the same scientific news. Nor was the Brazilian State standing still: the Ministry of Health had been distributing AZT since 1991.

What the chronology does support is more precise, and more interesting. The demand for combination therapy was formulated first by the person who needed it. The courts answered before any statute required them to. And Congress generalised, four months later, what judges had been recognising case by case. The universal policy did not precede the individual conflict. It followed it.

What the courts require today

The door opened in 1996 was never closed, but it was given a method. In 2018, in Theme 106 (REsp 1.657.156/RJ), the Superior Court of Justice set cumulative requirements for medicines not incorporated into the public lists: a detailed, reasoned report from the treating physician showing that the medicine is indispensable and that the alternatives available in the system are ineffective for that patient; inability to pay for the treatment; and registration of the product with Anvisa, within the uses the agency authorised.

In September 2024, the Supreme Federal Court concluded Theme 6 (RE 566.471) and approved Binding Precedent 61, under which a court order for a medicine that is registered with Anvisa but not incorporated into the public lists must follow those criteria, among them a prior administrative refusal, the impossibility of substitution by a listed alternative, and evidence of efficacy and safety.

Two practical consequences for a foreign patient in Brazil. Nationality is irrelevant: the public system is universal, and so is the right to go to court. And documentation matters far more than the eloquence of the complaint. A refusal in writing, a detailed report from your treating doctor explaining why the available alternatives do not work in your case, and proof of registration with Anvisa are what a Brazilian judge will look for.

Not every refusal becomes a right

When an equivalent treatment is available in the system, or when the requested product has no evidence supporting the indication, the claim tends to fail. That is not a flaw in the system. It is the filter working, and it is what preserves the legitimacy of the claims that should succeed.

The firm is available for a responsible review of your situation, in English.

About the author

Ramon Martins Andrade (Brazilian Bar, OAB/RJ 188.374) holds a law degree from UFRJ (2011), with master’s degrees from Université Sorbonne Nouvelle and from the Brazilian Naval War College (EGN). He is currently a researcher in Human Rights and Health at ENSP/Fiocruz.

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Ramon Martins Andrade (OAB/RJ 188.374) is a lawyer who graduated from UFRJ in 2011, with master’s degrees from Université Sorbonne Nouvelle and from the Naval War College (EGN, Brazilian Navy). He is currently a researcher in Human Rights and Health at ENSP/Fiocruz.

This content is for information and education only. It does not constitute legal advice, advertising of results or any guarantee of outcome, under Rule 205/2021 of the Brazilian Bar Association (OAB).