By PAULO CAPEL NARVAI*

The 1988 Constitution created SUS as the only health system in the country. Only this gives meaning to the qualifiers “complementary” and “supplementary”.

The expectation that on June 8, 2022, the Superior Court of Justice (STJ) would rule in favor of people who need health care, against companies that improperly market policies called “private health care plans”. The court approved, by 6×3, the “taxing list” according to which companies undertake before their customers to carry out only the procedures approved by the National Supplementary Health Agency (ANS).

The decision violates several articles of the Constitution of the Republic of 1988 (CF1988), notably the block that goes from art. 196 to 200, and the health legislation in Brazil. It also commits the folly of reducing “health” to “procedures” and ignoring elementary concepts related to the theme, such as, among others, the needs em health and needs de health, beyond the very and decisive concept of health. The reduction of health to procedures is a very serious elementary error, with disastrous consequences.

Although the decision of the STJ disregards individuals to benefit legal entities, it is useful to clarify the fact that companies euphemistically called “operators of health care plans”, have nothing to do with health, as they only sell “procedures” considering them as any commodity. They sell the promise of procedures, like someone who sells beef, soy, refrigerator, car, dress. The “private health care plans”, as I explained in the book SUS: a revolutionary reform, they are not flat, they do not assist, much less can they be admitted as being of health. They are, simply, contracts that, within the scope of civil law, have as their object not health, but “procedures”, better saying a “list” of them. And this corresponds to yet another violation of the constitutional provision (art. 197) that any action or health service is “of public relevance”.

It seems elementary that if something (in this case, health) is of “public relevance”, everything related to health cannot be decided only in the private sphere. But the “Citizen Constitution”, as Ulysses Guimarães referred to CF1988, was ignored in the decision of the STJ, as has been customarily happening in all instances of the judiciary. Generally, not out of bad faith, but out of ignorance or ideological bias.

It is not new, but it is also not by chance, that illegalities related to the SUS follow one another. Illegalities almost always converge to serve the purposes of the neoliberal political project that, also in Brazil, exterminates rights, deepens inequalities and concentrates income even more. It is in this perspective that the decision of the STJ must be seen.

For the Brazilian Center for Health Studies (CEBES) and various entities and social health movements, this decision further increases the structural “parasitism” about SUS, a term used by lawyer Matheus Falcão, from the Brazilian Institute of Consumer Protection (IDEC) and CEBES. This “parasitism” corresponds to the mechanism by which the supplementary health sector, escaping both the controls that the SUS must exert over it, and the “community participation” (as provided for in article 198 of the CF1988), which must, together , regulate, supervise and control its activities, continues to benefit from undue tax exemptions and uses the SUS as a kind of reinsurance for the policies sold by the companies that comprise it.

Things could, however, go otherwise, if the instances of the SUS, including the National Health Council (CNS), were valued and respected, under the terms of the law, as the adequate, proper, specific institutional space for the “strategy formulation” and control of “health policy implementation”. As the “supplementary health sector” is not concerned with health, but with contracts whose object is medical-dental “procedures”, whatever an “operator” does, its actions always concern the National Health Council and its assignments.

Currently, however, this does not happen, as the legislation is fragile, deliberately ambiguous and, as it is made to serve only commercial interests, to the detriment of citizens. This can be inferred from the fact that the National Council of Private Insurance (CNSP), and not the CNS, as mandated by CF1988, is responsible for regulating and supervising the actions of the so-called “operators of private health care plans”. Although the CNSP has a Supplementary Health Chamber, its members are as unknown as their actions in defense of health as a right of all and duty of the State, as inscribed in art. 196 of CF1988.

At this point, the reader must be wondering how, in the face of so many illegalities, we got to this point.

To understand, let's go to the beginning, or rather, to the myth created in the beginning. The myth that the 1988 Constitution would have created two health systems in Brazil: a public one, the SUS; and the other private, made up of complementary and supplementary health and private practices and clinics. This is a myth, a belief, which neoliberal ideologues try to disseminate as much as they can, as part of the strategy to hide the SUS and its institutional mission, to make the consolidation of health as one of the social rights provided for in the 1988 CF (art. 6th) unfeasible. ) and reduce the complex concept of health to a mere commodity, a procedure.

Although this simple and mistaken conception (health is not just not being sick), is based on common sense and has no basis in scientific knowledge currently accepted, it is widespread in our society. Of workers, who do strike to demand “VIP health plans” to ministers of health, many people assume that health can be bought, being recoverable with the performance of adequate procedures, an illusion that Hippocrates already discarded more than 2 thousand years ago. “Health cannot be bought” is the popular saying that expresses this ancient Hippocratic truth.

Former minister Ricardo Barros, with his “popular health plans” project, is perhaps the one who best expressed this reductionist view that he thinks it is possible to buy health. Opposing SUS and “health plans”, Michel Temer’s minister considered it necessary to review the “SUS size”, because “the more people can have plans, the better”, he pretended, for political convenience, to believe.

This reduction, and the myth of the two systems, fits like a glove with the neoliberal aim of reducing the State as much as possible. But it is even more useful for the ultraneoliberal purpose, represented by Bolsonarism, of visceral rejection of any idea of ​​connecting social protection to the role of the Democratic State of Law, since its objective is to continue the conservative political project that deepens inequalities and dependency and to which the Brazilian State should not be an instrument for social protection, but a kind of large barracks, where military personnel occupy strategic positions to ensure that nothing “disrupts business”.

For this reason, for Jair Bolsonaro and his acolytes, supplementary health is “ours” and the SUS is “theirs”, in the stereotyped and polarized conception of the nation that feeds the Bolsonarist ideology and for which the SUS, being state-owned and public , represents the incarnation of evil, the devil to be fought with prayers and contempt – and budget cuts, of course. The opposite side, the good and the good, to be protected by the supposed “defenders of freedom”, as Bolsonaristas imagine themselves, would correspond to “private health”, which would always be excellent and, therefore, a model with which the SUS should learn. This is, of course, an inverted view of reality, as naive as it is incompetent.

It is based, however, on this kind of Manichean delirium that the National Health Council has been the object of systematic attacks by the federal government, since the 2016 coup. collegiate structure of the Ministry of Health which, composed of government representatives, service providers, health professionals and users, has the mission assigned by law 8.142/1990, to act in the “formulation of strategies and in the control of the execution of the health policy”. The federal government, under Bolsonarist command, assumes that “private health” is not part of the country’s “health policy” and, for this reason, decided to regulate the “Supplementary Health Council” (CONSU), created unconstitutionally in 1998 for the law 9.656, because in collision with article 198 of the Magna Carta.

On the “gov.br” portal, CONSU has already been transformed into a Council National of Supplementary Health. But the attribution of competence to the National Council of Private Insurance (CNSP) to regulate health activities, made extremely unconstitutional by law 9.656/1998, had its constitutionality immediately questioned before the Federal Supreme Court (STF) by the Direct Action of Unconstitutionality 1.931. However, the Provisional Measure No. 177-44, from 2001, went even further and assigned to the CNSP competence to, among other functions, “establish and supervise the execution of policies and general guidelines of the sector supplementary health”.

Although the SUS is mentioned four times in this MP, in two articles, nothing is said about the National Health Council which, although having the attribution of “formulating strategies” and controlling the “execution of health policy”, is not even represented in the MP. CONSU and the Supplementary Health Chamber of the CNSP. All these bodies, it should be noted, should be subordinated, in health matters, to the National Health Council. On 3/3/2022, Law 14.307 replaced MP 177-44/2001, but the law, as the MP did, continued to ignore SUS and CNS. Another illegality, another violation of CF1988.

It is necessary to reaffirm that the Constitution of the Republic enacted in 1988 established in Brazil a single health system, the SUS. Our universal health system, inspired by the British National Health Service and in other similar systems, was created by articles 196 to 200 of CF1988, as a state system, inseparable from the structure of the Brazilian State. Contrary, therefore, to what many think, whether they are sincerely mistaken or those who, maliciously, want it to be, seeking to deform the constitutional text, Brazil does not have two health systems, one public and one private.

Since the enactment of the Constitution, the only health system in the country is the SUS. The qualifiers “complementary” and “supplementary”, used to refer to legal entities that, on a non-profit basis, or for profit purposes, carry out health actions and services in the country, confirm that the Brazilian system is unique, as they are effectively, complementary to the SUS or supplementary to it. If the SUS were not our only system, there would be no reason to use these names. What are they complementary or supplementary to? To the SUS, because it is up to the SUS, operating as a system, to ensure that these non-state parts or sectors operate as a whole to achieve a defined objective.

In article 197, CF1988 states that “health actions and services are of public relevance” and that it is up to the Public Power to dispose, under the terms of the law, on their “regulation, inspection and control, and their execution must be carried out directly or through third parties and also by individuals or legal entities governed by private law”. This “public relevance” of health means that any health action or service, even if carried out under the responsibility of an individual or legal entity, is under “regulation, inspection and control” of the Public Power, that is, under regulation, inspection and control of all institutions of the Democratic State of Law, that is to say, of the three powers of the Republic.

It should be emphasized that this attribution of the Public Power, in health, corresponds, in the last instance, to an attribution of the SUS. It was in this sense that the 8th National Health Conference, held in 1986 and which was a political and technical reference for the constituents of 1988, stated that the participation of the private sector in the Brazilian health system “must take place under the character of a public service”. granted' and a contract governed under the rules of Public Law [having] controlled its operational procedures and directed its actions [being] curbed abusive profits. The private sector will be subordinated to the directive role of state action in this sector, guaranteeing the control of users through its organized segments”.

Since its creation, however, the SUS has been attacked by neoliberal governments that should strengthen it to fulfill its mission and protect the health of Brazilians. One of the consequences of this fragility of the SUS is the transformation of health care into merchandise, to meet business purposes that aim only at profit. Significantly, both in law 9.656/1998 and in Provisional Measure 177-44/2011 the expression “health care” is not even mentioned.

It is common, even among union leaders and well-informed people, the belief that “privatization of SUS” began with the decision of the constituents of 1988 to guarantee freedom “to the private initiative” to carry out activities of “assistance to health” (art.199 of the CF1988). This decision is not equivalent, under any circumstances, to affirming that the Constitution established a private health system.

Of course, the set of privately owned health units existing in the country, such as offices, clinics, laboratories, hospitals, can be considered a “system”, in a generic sense. From the atom, molecules and cells, to the solar and cosmic systems, everything can be analyzed in the light of the general theory of systems, whose bases were formulated by Ludwig von Bertalanffy, as an integrated set of components that interrelate in an interdependent way and they operate as a whole to achieve a defined objective, the product of which results in something better than the simple sum of its components.

From this perspective, any system can be divided, in practice infinitely, into as many subsystems as one wants to decompose it. But, according to this theory, each and every system seeks to reach, necessarily, a goal. The objective of the SUS, as a system, is health. But health is not exactly the objective of the “supplementary health” sector, which does not operate systemically and cannot, due to its characteristics, produce health.

It is in this sense that it can be said that there is no private health system in Brazil. Neither a complementary or supplemental health system. Even current legislation and regulations refer to these segments as “sectors”, not as “systems”. They can, at most, be considered subsystems of the SUS. Subordinate to him, therefore, as to the purpose of the system.

On the ethical-political level, art. 199 of CF1988 is interpreted in a diametrically opposite way by liberals and socialists. For liberals, everything that the law and regulatory norms do not expressly prohibit would be allowed, with the purpose of profit. Capitalist ethics, in addition to not opposing these practices, has a positive value in the entrepreneurial exploitation of the work of health professionals. But socialists interpret Article 199 in a very narrow and specific way. It is not, ethically, an authorization to accumulate and reproduce capital at the expense of illness, pain, suffering and death, but a guarantee given by the Constitution to the right of autonomous exercise of activities by health professionals in their offices, clinics and laboratories , and in non-profit social enterprises.

Anyway, the fact is that “sector” is not “system” and “supplementary health” is just a semantic device to classify a commercial activity. Everything about health that is done in the “supplementary health sector” is, therefore, health. Substantively. Supplementary is an economic qualifier, not a sanitary one. In health terms, there is no “supplementary” health, as the complexity of health does not lend itself to this type of classification.

An analogy that I often use, useful to differentiate the concepts of “system” and “sector”, can be made with public safety. The fact of ensuring the freedom of legal entities, owned by individuals, to carry out security actions, is not equivalent to establishing a private public security system in the country, since it is incumbent upon the State to ensure the security of people and to have a monopoly on the use of public security. weapons. Those used by private security companies are also regulated, inspected and controlled by the State, since public security, like health, is not a private matter, considered private, or even private, but has “public relevance”.

The set of companies, owned by private individuals, that carry out so-called “health care” commercial operations operate in the insurance market, where they sell policies, misnamed “health care plans”, which have as their object a list of varied procedures that correspond to health care actions and operations. Currently, this commercialization is subject to legislation and regulatory standards and it is the responsibility of the National Supplementary Health Agency (ANS), on behalf of the Brazilian State, to supervise companies and protect their customers.

However, an inversion of these functions has been observed. The ANS has been frequently accused, by consumers, of protecting the companies and not the buyers of the “plans”. In consumer protection agencies, such companies lead the list of complaints and claims.

It is under this constitutional framework that the relationship, which is currently inverted, between the SUS and the so-called “supplementary health”, whose expression does not even appear in the 1988 Constitution, should be redefined. The National Congress needs to address this issue and place the supplementary health sector , effectively, under the control of the SUS. That's what it's about. If CF1988 approved that health is of public relevance and that health actions and services will be regulated, inspected and controlled by the State, then the SUS and its instances must be, throughout the national territory, a participant and leader in these decisions.

In the historical context of financialized capitalism, companies operating in this sector, many with shares on stock exchanges, have their business strategies defined by financial capital and not by the ethical principle of the right to health and the necessary epidemiological reference for decision-making linked to that principle. Companies are captured by financial capital and this is not healthy at all, as rentiers fatten their bank accounts at the cost of pain, suffering and death.

It is urgent that society put an end to this and that this history begins to change, as it is unacceptable that, although the actions of this business segment impact the health system, its operations are not controlled by the SUS and by organized society, present in councils of health in municipalities, states and at the national level.

It is also urgent that the ANS resume the mission for which it was created, if necessary, producing changes in the legislation in order to, considering the public relevance of health, carry out the role of the Public Power in health, subordinating the performance of the supplementary health sector to SUS. This also means that the connection must be enshrined in law that everything that applies to the SUS automatically applies to companies that sell “private health care plans”.

What was in dispute in the STJ's decision was, therefore, much more than the nature of the list of procedures, whether exhaustive or exemplary. With its unconstitutional decision, I reiterate, the STJ unfortunately contributed to striking the social right to health and creating additional impediments for the SUS to fulfill its institutional mission as the main instrument of the Democratic State of Law to assure everyone the exercise of the right to health. Regrettably, the STJ reversed this orientation. Overriding sanitary criteria, it prioritized the viability of businesses involving illness and death. Corporate shareholders are certainly grateful to him.

*Paulo Capel Narvai is senior professor of Public Health at USP. Author, among other books, of SUS: a revolutionary reform (authentic).