DEMOCRATIZATION OF ACCESS TO MEDICINAL CANNABIS THROUGH THE ADOPTION OF TREATMENT IN THE SUS

Abstract

Access to healthcare, as a fundamental human right, is enshrined in the 1988 Federal Constitution and in international treaties ratified by this country. However, this right, in practice, faces significant obstacles, particularly in places where inequality and social exclusion are a reality. Furthermore, the inclusion of innovative treatments, such as medicinal cannabis, in the Unified Health System (SUS) is presented as a tempting innovation. This is not a technological or therapeutic innovation, but rather an innovation in terms of social justice that aims to eliminate historical prejudices and redefine the State's authority over its people.

In this sense, medicinal cannabis emerges as a topic that cannot be addressed without directly questioning the principles of well-being and social justice. In this scenario, the first step that medical and social evolution requires is a critical examination of the legal, social, and ethical implications of regulating such an issue. By focusing on legal implications and the practical context of access, this dissertation aims to examine the challenges and opportunities of democratic access to this important therapy, considering the more critical perspective of those who are inevitably confronted with more pressing problems. My intention is to contribute to the construction of an efficient government tied to the preservation of human rights to better treat citizens.

Medical cannabis is a widely debated topic in academia and society, and the aforementioned subjectivity in reflecting on social reality is shaped precisely by the resistance that much more robust activism faces from a guardianship formed by criminalization and stigmatization. This resistance, sometimes based on prohibitionist discourse, limits not only access but also the possibility of building a more just health policy. Therefore, this dissertation seeks to understand ways to overcome this resistance by describing theoretical and practical shifts in access to medicinal cannabis within the Unified Health System (SUS).

The discovery and availability of more therapeutic options in cannabis-based medicines therefore broadens the principle of equity in the right to health. In Brazil, the logic of access to innovative medicines is institutionally strained between social demand and bureaucratic, financial, and regulatory obstacles. The problem becomes even more pronounced due to the high rates of judicialization: in practice, the latter involves individuals who legally demand, based on fundamental rights, the provision of medicines or treatments not covered by public law. Although judicialization itself is lawful in the sense that young people with pathological complications seek to protect their human rights, it poses a dual challenge to public administration.

This research, therefore, is part of the debate on the effectiveness of public health policies in Brazil, analyzing the feasibility of incorporating medicinal cannabis into the Unified Health System (SUS) in light of theories of justice. In theoretical terms, the dissertation is based on the concepts developed by John Rawls and Amartya Sen, which offer fundamental contributions to the analysis of equity and distributive justice. Rawls argues that a just society must prioritize the least advantaged, ensuring that public policies reduce structural inequalities. Sen, in turn, proposes that justice cannot be measured solely by the distribution of resources, but by people's actual ability to convert these resources into concrete opportunities. Thus, the incorporation of medicinal cannabis into the SUS (Brazilian Unified Health System) can be analyzed as a social justice strategy that seeks to expand individual freedoms and ensure equal access to healthcare.

This dissertation is structured in four chapters, each addressing complementary aspects of the topic under analysis.

The first chapter presents an in-depth investigation of the legal and theoretical foundations that support the right to health in Brazil. It initially addresses the historical evolution of this right in the national and international arena, highlighting the normative frameworks that consolidated it as a pillar of the democratic rule of law. It then explores constitutional principles such as universality, comprehensiveness, and equity, linking them to the demands for innovative treatments. Furthermore, it examines the contributions of Amartya Sen's and John Rawls' theories of justice, which provide a foundation for formulating public policies guided by equity and the reduction of inequalities.

The second chapter discusses the Unified Health System (SUS) and the Incorporation of Innovative Technologies and investigates the processes and criteria involved in the inclusion of new treatments in the SUS. This chapter analyzes the regulatory and institutional framework that regulates the incorporation of medications, discussing the technical, economic, and ethical requirements that guide these decisions. Particular attention is given to cost-effectiveness analysis and the need to ensure universal access, especially for vulnerable populations.

The third chapter is dedicated to an in-depth analysis of medicinal cannabis, considering the challenges and recent advances in its regulation, its acceptance in the medical field, and the public policies being developed in Brazil and other countries. This chapter investigates the barriers that still impede more comprehensive regulation, the scientific advances that support its therapeutic efficacy, and the need for a regulatory model that balances innovation, safety, and equity in access.

Finally, the fourth chapter of this dissertation presents a critical and comprehensive analysis of the challenges and prospects for democratizing access to medicinal cannabis in Brazil, with a focus on its incorporation into the Unified Health System (SUS). The chapter examines the legal, economic, and regulatory barriers that limit the effectiveness of the right to health, as well as the role of judicialization as a palliative mechanism in the face of state inaction. The chapter highlights successful international models, such as those of Canada, Israel, Germany, Uruguay, and some North American states, whose experiences reveal possible paths forward for Brazil. Finally, concrete proposals are presented, such as the regulation of associative cultivation, incentives for domestic production, training of health professionals, and the formulation of inclusive public policies. These measures aim not only to expand access to treatment but also to strengthen the constitutional principles of universality, comprehensiveness, and equity in the Unified Health System (SUS), promoting social justice, scientific development, and respect for human dignity.

Throughout the chapters, the dissertation seeks to offer an integrated and multidisciplinary analysis, connecting the legal, social, and economic aspects of the issue of medicinal cannabis. The ultimate goal is not only to contribute to the advancement of academic debate but also to propose concrete paths for the formulation of public policies that expand access to health care in Brazil. The expectation is that this work can inspire significant changes in the way the right to health is implemented, strengthening the foundations of a more just and egalitarian society.

This investigation adopts a qualitative and interdisciplinary approach, based on bibliographic and documentary analysis, with the objective of investigating the democratization of access to medicinal cannabis in the Unified Health System (SUS) in Brazil. The methodology employed combines knowledge of health law, public policies, political philosophy and health economics, which allows for a comprehensive understanding of the challenges and opportunities related to the incorporation of this therapeutic technology into the public health system. This methodological choice is justified by the multifaceted complexity of the phenomenon in this study, which requires an analysis that transcends traditional disciplinary limits to adequately capture its legal, social, economic and ethical dimensions.

The theoretical framework of this investigation is based on the fundamental contributions of Amartya Sen and John Rawls, whose theories of justice offer a solid conceptual framework to analyze questions of equity and access in the context of public health policies. The focus on capabilities by Sen (2010) and the theory of justice as equity by Rawls (2003) highlight the importance of equity and human capabilities to achieve a dignified life, providing essential theoretical tools to evaluate the distributive justice of policies related to medicinal cannabis. From the perspective of these theories of justice, the theme of this thesis is intrinsically linked to the principles of equality of opportunities and distributive justice, as Amartya Sen argues that justice cannot be evaluated exclusively by the formal distribution of resources, but by the real capacity of people to convert these resources into concrete opportunities and valuable functions.

From this theoretical perspective, the incorporation of medicinal cannabis into the Brazilian Unified Health System (SUS) appears as a measure of distributive justice that seeks to expand the human capabilities of vulnerable populations, especially those who face systemic barriers to accessing innovative treatments. John Rawls, in turn, proposes, through the principle of difference, that a just society must prioritize the better conditions of the most disadvantaged, as long as they are not compromising fundamental freedoms and equality of opportunities. In the Brazilian context, the expansion of access to medicinal cannabis through the SUS (Sistema Único de Salud) represents a concrete step towards Rawlsian justice, which mainly meets the needs of people who, due to socioeconomic limitations, have difficulties in accessing treatments available exclusively in the private sector.

The analyzed documentary corpus covers multiple dimensions of the phenomenon in this study, including national regulatory documents such as the Federal Constitution of 1988, resolutions of the National Health Surveillance Agency (ANVISA), reports from the National Commission for the Incorporation of Technologies in the SUS (CONITEC) and jurisprudence of superior courts on it judicialization of health rights. Furthermore, empirical studies will be examined that describe the social, economic and clinical impacts of medicinal cannabis, as well as international regulatory experiences from countries that have incorporated this therapy into their public health systems. This expanded documentation allows for a comparative analysis that identifies both the specificities of the Brazilian context and the lessons learned from other national experiences, contributing to a more nuanced understanding of the challenges and possibilities for democratizing access.

The analysis is structured from a critical and proactive perspective, articulating the theoretical content with the practical challenges identified in the implementation of inclusive public policies. This methodological strategy allows on the ground understanding the complexity of the studied phenomenon, as well as formulating viable proposals based on scientific evidence and comparative experiences, contributing to the advancement of knowledge in the field and the formulation of more equitable policies. In this investigation, the judicialization of health rights is examined as a complex and multifaceted phenomenon, which simultaneously reveals itself as an important channel for the realization of fundamental rights and as an indicator of deficiencies in the public health system.

Court decisions that mandate the provision of cannabis-based medicines by the State act as catalysts for structural change, highlighting the ongoing tension between emerging social demands, scientific advances, and the budgetary and regulatory constraints of the public system. This methodological approach allows us to understand how the Judiciary's actions, while not a substitute for appropriate public policymaking, can contribute to accelerating the incorporation of technologies and pressuring public officials to develop more effective responses to the population's health needs. At the same time, a critical analysis of judicialization reveals the risks of reproducing inequalities when access to innovative treatments depends on an individual's ability to mobilize legal and financial resources to file lawsuits, reinforcing the need for proactive public policies that anticipate these demands and ensure equitable access regardless of citizens' ability to litigate.

OBJECTIVES
General Objectives

The general objective of this dissertation is to examine the extent to which the incorporation of medicinal cannabis-based treatments into the Brazilian Unified Health System (SUS) can contribute to the realization of the right to health and the promotion of human dignity. It also seeks to understand how this strategy fits into the field of social justice theories and public policy.

Specific Objectives

Analyze the legal and theoretical foundations that support the right to health, with a focus on the integration of innovative treatments into the SUS;

Identify the political, economic, social, and cultural challenges involved in the adoption of cannabis-based medicines;

Critically analyze the effects of the judicialization of the right to health on access to treatment, especially its budgetary impact and the repercussions on the formulation of sustainable public policies.

Finally, propose concrete strategies for the incorporation of medicinal cannabis into the SUS, based on the theories of justice of John Rawls and Amartya Sen, with a view to realizing the right to health and promoting human dignity.