ABSTRACT

Compulsory hospitalization due to drug use has been questioned in the Mental Health Policy and expresses the struggle between the principles of Unified Health System (SUS)/Psychiatric Reform versus the private interests about remanicomialization. This paper analyses expenditures on compulsory hospitalizations due to drug use carried out by the State Health Secretariat of Espírito Santo (ES) between 2014 and 2019 and aims to identify its allocation. It outlines brief reflections on the right to health and the disputes over public funds. This is documentary research with data gathered from the ES Transparency Portal. Descriptive statistical analysis and categoric content analysis were used. The data show disputes over public funds and that this is not a transparent process to society. The struggles between the Executive and the Judiciary over the right of access to health treatment are points that must be discussed.

KEYWORDS:
Mental health; Public expenditures on health; Cost transparency

Introduction

Compulsory Hospitalization (CH) has been discussed in the mental health policy globally, in Brazil, and Espírito Santo (ES)¹1. Lunze K, Idrisov B, Golichenko M, et al. Mandatory addiction treatment for people who use drugs: global health and human rights analysis. BMJ. 2016; (353):i2943. ²2. Werb D, Kamarulzaman A, Rafful C, et al. The effectiveness of compulsory drug treatment: a systematic review. Int J Drug Policy. 2016; (28):1-9. ³3. Bardi G. Entre a cruz e a caldeirinha: doses diárias de alienação nas comunidades terapêuticas religiosas [tese]. Vitória: Universidade Federal do Espírito Santo; 2019. 343 p. ⁴4. Santos CCM, Leal FX, Jesus RS. Política Sobre Drogas no Estado do Espírito Santo: consolidando retrocessos. Textos Cont. 2016; (15):423-436.. Sometimes stated as something new, compulsory hospitalization is an old phenomenon. According to a text by the European Commission – Health & Consumer Protection Directorate-General⁵5. European Union. Compulsory Admission and Involuntary Treatment of Mentally III Patients. Legislation and Practice in EU-Member States [internet]. Mannheim: European Commission; 2002. [acesso em 2019 dez 15]. Disponível em: https://ec.europa.eu/health/ph_projects/2000/promotion/fp_promotion_2000_frep_08_en.pdf.
https://ec.europa.eu/health/ph_projects/... , the involuntary or compulsory hospitalization of people in mental suffering is cited and has involved legal and ethical debates for over a century. What appears more recently is the CH of people under the justification of drug use.

While there are different definitions of forced or compulsory psychiatric treatment, this term is often used when people undergo medical treatment against their own will. The theme is recognized in the national and international legislation, discussing the right to health from the perspective of human rights. In this sense, psychiatry is a clear exception because other medical fields generally do not allow forced treatment. The types of forced treatment of people vary and do not only occur in hospitals – some may be forced to take psychoactive substances in other institutions, including their own homes. Compulsory treatment can be defined as an action that, in theory, would increase the probability of people starting and remaining in treatment⁶6. Leukefeld CG, Tims FM. Compulsory Treatment of Drug Abuse: Research and Clinical Practice. NIDA Research Monograph. 1988 [acesso em 2020 mar 29]; (86):236-51. Disponível em: https://www.researchgate.net/publication/20016323_Compulsory_treatment_A_review_of _findings.
https://www.researchgate.net/publication... . The rules for applying what has come to be called ‘treatment’ vary from country to country. The Court orders these measures based on the assessments of general medical professionals. More than one opinion is required in some countries, and in others, just one is enough. Also, CH often involves conflicting perspectives: some indicate hospitalization – health professionals and the Judiciary – and others are the target of the action and will have their freedom limited by hospitalization. People undergoing coercive treatment experience it as a severe limitation on their freedom. Many people feel threatened by decisions made about their lives without their consent. According to Lunze et al.¹1. Lunze K, Idrisov B, Golichenko M, et al. Mandatory addiction treatment for people who use drugs: global health and human rights analysis. BMJ. 2016; (353):i2943., in most legal systems, the basis of mandatory treatment is the presumption that the individual in question represents a risk to himself/herself or others.

Global evidence indicates that mandatory hospitalization for what is called ‘drug addiction’ conflicts with the human rights of people who use drugs and is not effective when talking about a possible ‘treatment’²2. Werb D, Kamarulzaman A, Rafful C, et al. The effectiveness of compulsory drug treatment: a systematic review. Int J Drug Policy. 2016; (28):1-9.. In a literature review, these authors highlight that there is no “[...] scientific literature evaluating compulsory drug treatment”²2. Werb D, Kamarulzaman A, Rafful C, et al. The effectiveness of compulsory drug treatment: a systematic review. Int J Drug Policy. 2016; (28):1-9.⁽²⁾, and add:

Advocating for this procedure continues despite the lack of evidence of its efficacy and effectiveness. In legal terms, hospitalization without the patient’s consent is provided for in the Brazilian Psychiatric Reform (RP) Law Nº 10.216/2001⁷7. Brasil. Lei nº 10.216, de 6 de abril de 2001. Dispõe sobre a proteção e os direitos das pessoas portadoras de transtornos mentais e redireciona o modelo assistencial em saúde mental. Diário Oficial da União. 9 Abr 2001., according to articles 4, 6, and 9, provided that it is indicated when extra-hospital resources are insufficient, in any of its modalities. This Law defines compulsory hospitalization as determined by the Court and is different from involuntary hospitalization (which takes place without the user’s consent and at the request of a third party)⁷7. Brasil. Lei nº 10.216, de 6 de abril de 2001. Dispõe sobre a proteção e os direitos das pessoas portadoras de transtornos mentais e redireciona o modelo assistencial em saúde mental. Diário Oficial da União. 9 Abr 2001..

Coelho and Oliveira⁸8. Coelho I, Oliveira MHB. Internação compulsória e crack: um desserviço à saúde pública. Saúde debate. 2014; 38(101):359-367. alert that how these hospitalizations have been required violates the constitutional principles of human dignity and health, which are also considered fundamental human rights. Considering that law science is grounded on the principle of legality, especially concerning deprivation of liberty, CH is determined only for cases provided for in the Brazilian legislation in force. In other words, it must be based on the hypotheses of the Criminal Enforcement Law (LEP) (art. 99 to 101)⁹9. Brasil. Lei nº 7210, de 11 de julho de 1984. Institui a Lei de Execução Penal. Diário Oficial da União. 11 Jul 1984. and the Penal Code (art. 96 and 99, wording given by Law Nº 7.209)¹⁰10. Brasil. Lei nº 7209. Altera dispositivos do Decreto-Lei nº 2.848, de 7 de dezembro de 1940 – Código Penal, e dá outras providências. Diário Oficial da União. 11 Jul 1984.. These articles address the CH of ‘patients with mental illness’ when they commit an act defined as a crime by criminal Law. In such cases, they will be transferred to custodial hospitals instead of being sent to prison⁸8. Coelho I, Oliveira MHB. Internação compulsória e crack: um desserviço à saúde pública. Saúde debate. 2014; 38(101):359-367..

However, suppose the elements from the war on drugs are brought up (temporally demarcated at the beginning of the 19th century and reconfiguring itself throughout the 20th and 21st centuries)¹¹11. Lima RCC. Uma história das drogas e do seu proibicionismo transnacional: relações Brasil – Estados Unidos e os organismos internacionais [tese]. Rio de Janeiro: Universidade Federal do Rio de Janeiro; 2009.. In that case, it can be said that the reasons for this public to become targets of compulsory hospitalizations are the most diverse and encompass different interests. Two main discourses stand out: that of the medical-legal statute, which strengthens the biomedical model as the primary scientific paradigm, with a specific conception of the body devoid of its social, cultural, racial, and gender determinants¹²12. Barbosa RHS. Mulheres, reprodução e Aids: as tramas da ideologia na assistência à saúde de gestantes HIV+. [tese]. Rio de Janeiro: Escola Nacional de Saúde Pública Sergio Arouca, Fundação Oswaldo Cruz; 2001.; and the moral-legal discourse, which presents the faith-mediated strategy as an alternative to overcoming. From this perspective, we observe a growing movement of psychiatric clinics that stand as alternatives to the difficulties in accessing places in the public system. In the Brazilian case, this discourse occurs in expanding Pentecostal churches – the main organizers of Religious Therapeutic Communities (RTCs).

Here, the growth and strengthening of two types of institutions stand out in the context of remanicomialization of the National Mental Health Policy underway in the country, which is part of a general project to dismantle the Unified Health System (SUS)¹³13. Guimarães TAA, Rosa LCS. A remanicomialização do cuidado em saúde mental no Brasil no período de 2010-2019: análise de uma conjuntura antirreformista. O Social em Questão. 2019 [acesso em 2020 mar 7]; 22(44):111-138. Disponível: http://osocialemquestao.ser.puc-rio.br/media/OSQ_44_art5.pdf.
http://osocialemquestao.ser.puc-rio.br/m... . Thus, the thesis that the expenses with CH of drug users express in themselves the struggle between the principles of the public and universal SUS and those of the Brazilian anti-asylum PR versus the private interests of remanicomialization is advocated.

This text presents reflections articulating the institutions that carry out CH, the right to health, and the dispute for public funds to decipher this phenomenon. Then, the methodological procedures and the analysis of expenses with CHs in ES will be presented. Therefore, this paper aims to analyze the expenses with compulsory hospitalizations due to drug use carried out by the State Health Secretariat of Espírito Santo (Sesa) from 2014 to 2019 to identify its allocation. Or, as in the words of Gilson Carvalho¹⁴14. Carvalho G. Gasto da união com saúde nos anos 1995-2012. 2013. [acesso em 2013 ago 19]. Disponível em: https://darcisioperondi.com.br/gasto-da-uniao-com-saude-nos-anos-1995-2012-gilson-carvalho/.
https://darcisioperondi.com.br/gasto-da-... , the question is: where does the CH money go in ES?

We start from the thesis that, on the one hand, there is a dispute between those who defend PR with the offer of care by the SUS for harm reduction and those who advocate for hospitalizations focused on abstinence. On the other hand, we observe disputes in the very field of these private institutions. In other words, psychiatric clinics compete for funding with the Therapeutic Communities (TCs), and both have allies and supporters in the three spheres of government and several non-governmental associations.

Private institutions for compulsory hospitalization and competing for public funds

The TCs in Brazil have pressured the State to access public funds¹⁵15. Garcia MLT, Leal FX, Abreu CC. A Política Antidrogas brasileira: velhos dilemas. Psicologia e Sociedade. 2008; 20:267-276., supported by an evangelical bench¹⁶16. Departamento Intersindical de Assessoria Parlamentar. Radiografia do novo Congresso. Brasília, DF, 2018. [acesso 2019 dez 19]. Disponível em: https://www.diap.org.br/index.php/publicacoes/finish/41-radiografia-do-novo-congresso/4045-radiografia-do-novo-congresso-legislatura-2019-2023-fevereiro-de-2019.
https://www.diap.org.br/index.php/public... in the National Congress¹⁷17. Basilio-Denadai MC. O processo de formulação da política sobre drogas no Brasil pelo Congresso Nacional [tese]. Rio de Janeiro: Universidade Federal do Rio de Janeiro; 2015. 343 p.. The establishment and strengthening of these fronts and federations occurred in the context of the Dilma government (first and second mandates), which defended the idea of a crack ‘epidemic’, reinforcing the moral and conservative discourse.

The Brazilian Psychiatric Association (ABP) is also active in this regard. It advocates the lack of scientific evidence of the effectiveness of the type of treatment offered in RTCs but defends a traditional perspective centered on the biomedical model. That is, the action of the TCs is not due to the lack of scientific proof of the proposed ‘treatment’ they promote, but, above all, competing for public resources, so that, around abstinence – defended by TCs and the ABP –, what differentiates them is the explanatory discourse of the phenomenon adopted by each one.

Also, the ‘new’ Drug Law 2019 (Law Nº 13,840)¹⁸18. Brasil. Lei nº 13.840, de 5 de junho de 2019. Dispõe sobre o Sistema Nacional de Políticas Públicas sobre Drogas e as condições de atenção aos usuários ou dependentes de drogas e para tratar do financiamento das políticas sobre drogas. Diário Oficial da União. 5 Jun 2019. considered only two types of hospitalization in art. 23A (§ 3): voluntary and involuntary. It does not employ the word ‘compulsory’ in the text. However, it maintains the idea that this second modality – involuntary – takes place without the person’s consent, at the request of a family member or legal guardian or, in the absolute absence of this, a public servant in the field of health, social assistance, or public agency that are part of the National Drug System, determining how it should take place (§ 5). This law prohibits any hospitalization in TCs (§ 9)⁶6. Leukefeld CG, Tims FM. Compulsory Treatment of Drug Abuse: Research and Clinical Practice. NIDA Research Monograph. 1988 [acesso em 2020 mar 29]; (86):236-51. Disponível em: https://www.researchgate.net/publication/20016323_Compulsory_treatment_A_review_of _findings.
https://www.researchgate.net/publication... . In other words, these regulations signal the Brazilian government’s stance on the issue through several prerogatives, including the non-liberation of any drug in the country, the CH of chronic users, and stricter punishment for small traffickers.

Since Law Nº 11.343¹⁹19. Brasil. Lei nº 11.343, de 23 de agosto de 2006. Institui o Sistema Nacional de Políticas Públicas sobre Drogas – SISNAD; prescreve medidas para prevenção do uso indevido, atenção e reinserção social de usuários e dependentes de drogas; estabelece normas para repressão à produção não autorizada e ao tráfico ilícito de drogas; define crimes e dá outras providências. Diário Oficial da União. 24 Ago 2006., which is still in force (even with some repeals and amendments by Law Nº 13.840/2019¹⁸18. Brasil. Lei nº 13.840, de 5 de junho de 2019. Dispõe sobre o Sistema Nacional de Políticas Públicas sobre Drogas e as condições de atenção aos usuários ou dependentes de drogas e para tratar do financiamento das políticas sobre drogas. Diário Oficial da União. 5 Jun 2019.), care and social reintegration of drug users and dependents could be carried out both by SUS services and by private institutions and nonprofit civil society organizations (art. 3). In other words, these institutions, such as TCs and psychiatric clinics, became eligible for public subsidies, such as fiscal and financial benefits (art. 24).

There is evidence of a diachrony in the direction of the policies implemented by the Brazilian State in mental health, and, even with the expanded public system, the private sector is preserved as a supplement, so institutions’ dispute for public funds²⁰20. Cislaghi JF. Privatização da saúde no brasil. Em Pauta. 2019; 43(17):60-73. is escalated and could lead to the underfunding of the Psychosocial Care Network (Raps) services. This is because the public fund plays an active role in macroeconomic policies and is essential for productive accumulation and social policies, particularly social security. Thus, it has a relevant role in keeping capitalism in the economic sphere and ensuring the social contract²¹21. Salvador E. Fundo público e seguridade social no Brasil. São Paulo: Cortez; 2010..

The financing of Brazilian mental health is far from reaching the goal proposed by the World Health Organization (WHO) (5% of the general health budget)²²22. World Health Organization. Innovation in deinstitutionalization: A WHO expert survey. Geneva; 2014.. Furthermore, the Ministry of Health (MS) informs that the existing service network covers 72% of the field’s demand²³23. Garcia MLT, Oliveira EA. An analysis of the Federal funding for mental health care in Brazil. Social Work in Health Care. 2017; (56):1-20., leading to the denial of the principle of universal access daily. This historic health policy (and mental health) underfunding undergoes a new inflection: Constitutional Amendment 95, which imposes health underfunding²⁴24. Mendes AN, Carnut L. Capital, Estado, Crise e a Saúde Pública brasileira: golpe e desfinanciamento. SER Social. 2020; (22):9-32., with a freeze on social spending for 20 years. Thus, this context of intense attacks on social rights only exacerbates the contradictions and the deleterious effects of the crisis of capital, which affects more explicitly some layers of the working class.

People who use drugs and demand intervention in health are part of this setting. In many cases, CH is offered to them, which is consolidated as the main alternative, showing an invisible dimension of drug consumption, not always easy to be identified outside the walls of the services that perform this procedure or Judiciary rooms. This amazement today at the so-called growth of these CHs is the partial visibility they currently assume. Partial because it is subsumed that the logics of capital, its predatory and limitless expansion, must be deciphered, discovering and understanding these barbaric times²⁵25. Barroco ML. Barbárie e neoconservadorismo: os desafios do projeto ético-político. Serv. Soc. Soc. 2011; (106):205-218..

The right to health implies the offer of health care services and supplies. It is a social right and encompasses the individual and group dimensions for its realization. This right to health is recognized and related to human dignity, so that its incorporation into laws, public policies, and jurisprudence also reflects the tensions and perceptions about the definitions of health and disease, how this should be achieved, the rights of the population, and the responsibilities of the State²⁶26. Dallari SG. O Direito à Saúde. Revista Saúde Pública. 1988; 22(1):57-63.. In the Brazilian reality, the right to health is expressly provided for as a social right under the 1988 Federal Constitution, in art. 196²⁷27. Brasil. Constituição, 1988. Constituição da República Federativa do Brasil. Brasília, DF: Senado Federal; 1988., according to the expanded concept of health formulated by the VIII National Health Conference held in 1986⁵5. European Union. Compulsory Admission and Involuntary Treatment of Mentally III Patients. Legislation and Practice in EU-Member States [internet]. Mannheim: European Commission; 2002. [acesso em 2019 dez 15]. Disponível em: https://ec.europa.eu/health/ph_projects/2000/promotion/fp_promotion_2000_frep_08_en.pdf.
https://ec.europa.eu/health/ph_projects/... .

In this setting, the legal demand in the health field reflects an attempt to approach or implement an aspect of this right, which is access to the material means to achieve it²⁸28. Ventura M, Simas L, Pepe VLE, et al. Judicialização da saúde, acesso à justiça e a efetividade do direito à saúde. Physis Rev. Saúde Colet. 2010; 20(1):77-100.. Far from intending to exhaust the theme, we recognize that the term ‘judicialization’ is polysemic²⁹29. Carvalho ER. Em busca da judicialização da política no Brasil: apontamentos para uma nova abordagem. Rev. Sociol. Polít. 2004; (23):115-126., and here we seek an approximation with the debate on the right to health and the judicialization of life when the object in question is mental health. However, the reflection is not exhausted in this debate. It requires understanding the practical consequences of judicial decisions on individual demands and how the Court has sought to define which values currently contextualize the right to health³⁰30. Lima TM. O direito à saúde revisitado entre os ideais da Constituição de 1988 e o drama jurídico atual. Rev. Inf. Legis. 2014 [acesso em 2020 mar 20]; 51(202):181-201. Disponível em: http://www2.senado.leg.br/bdsf/handle/id/503044.
http://www2.senado.leg.br/bdsf/handle/id... .

In this attempt, under the argument of preserving drug users to ensure their health, CH has been the primary justification pointed out by both the Judiciary and health professionals. However, as highlighted by Ventura et al.²⁸28. Ventura M, Simas L, Pepe VLE, et al. Judicialização da saúde, acesso à justiça e a efetividade do direito à saúde. Physis Rev. Saúde Colet. 2010; 20(1):77-100., the expansion of this role of the Justice System affects the life of individuals targeted by the measure and management. There is a risk of developing the legal route as the primary means to secure access to ‘treatment’ and, in this sense, causing significant damage to the (individual and collective) effectiveness of the right to health³¹31. Marques SB. Judicialização do direito à saúde. Revista de Direito Sanitário. 2008; 9(2):65-72..

One element of this transition from health to the right to health is that the latter involves the satisfaction of an individual or private dimension. Individual, in the sense of respecting subjectivities, personal rights, and freedoms; and collective, in the sense of ensuring that this individual well-being has an acceptable cost to society. In other words, when trying to reconcile individual and group interests based on the fulfillment of the State’s duties to protect the health of all, restrictions on the freedom of some may be necessary to achieve a specific collective good or social interest. The controversial issue in this conjunction is the legitimacy of the norm that restricts individual freedom, correlated to the idea of what is meant by a fair law. When relating to the Executive Branch, demanding that it comply with a certain measure, the Judiciary has caused a strong tension on the Judiciary’s legitimacy and technical or legal-institutional competence to decide on how the Executive of health must fulfill its task²⁸28. Ventura M, Simas L, Pepe VLE, et al. Judicialização da saúde, acesso à justiça e a efetividade do direito à saúde. Physis Rev. Saúde Colet. 2010; 20(1):77-100.. This comes with the grievance that the Judiciary, in general, is limited to determining compliance with the measure indicated by the claimant, supported by a medical prescription.

In general, this discussion has been carried out in several studies on the judicialization of health, highlighting those that emphasize the adverse effects of this type of demand in the management of health policies. This type of intervention in the SUS would allegedly deepen inequalities in access to health, favoring specific segments and individuals over others, while individual needs or specific groups would be met at the expense of the needs of other groups and individuals³²32. Marques SB, Dallari SG. Garantia do direito social à assistência farmacêutica no Estado de São Paulo. Rev. Saúde Pública. 2007; 41(1):101-107. ³³33. Vieira FS, Zucchi P. Distorções causadas pelas ações judiciais à política de medicamentos no Brasil. Rev. Saúde Pública. 2007; 41(2):214-222. ³⁴34. Chieffi AL, Barata R. Judicialização da política pública de assistência farmacêutica e equidade. Cad. Saúde Pública. 2009 [acesso em 2020 abr 25]; 25(8):1839-1849. Disponível em: https://www.scielo.br/pdf/csp/v25n8/20.pdf.
https://www.scielo.br/pdf/csp/v25n8/20.p... . Other studies³⁵35. Messeder AM, Osorio de Castro CGS, Luiza VL. Mandados judiciais como ferramenta para garantia do acesso a medicamentos no setor público: a experiência do Estado do Rio de Janeiro. Cad. Saúde Pública. 2005; 21(2):525-534. point out the deficiencies and insufficiencies of the Brazilian Health and Justice systems to respond satisfactorily to the new and growing health demands. However, in the perspective adopted in this paper, the phenomenon involves other political, social, ethical, and health aspects, which go far beyond the legal and management, and governability component of public services. This debate must be conducted considering the principles of comprehensive care, universal access, and bioethics, so dear to the SUS.

The Judiciary Branch has been concerned with this phenomenon and has proposed some measures to debate and address health judicialization³⁶36. Dias ER, Silva Junior GBJ. Evidence-Based Medicine in judicial decisions concerning right to healthcare. Einstein. 2016 [acesso em 2020 jan 19]; 14(1). Disponível em: http://www.scielo.br/scielo.php?script=sci_arttext&pid=S1679-45082016000100002.
http://www.scielo.br/scielo.php?script=s... , highly motivated by the demands for high-cost medicines. The current legal debate harbors different positions on the effectiveness of the right to health and on the analysis of the possible action by the Judiciary in determining measures to be followed by the SUS. We can highlight some as follows: a) one position understands that the effectiveness of this right should be restricted to services and supplies available from the SUS, determined by the public manager; b) another argues that the right to health implies a guarantee of the individual’s right to life and physical integrity, and the Judiciary should consider the absolute authority of Medicine, which issues its opinion in the lawsuit; c) and the third position understands that the effectiveness of the right to health should be as broad as possible, and the Judiciary should consider rights, assets, and interests at stake, in order to establish the content of the provision owed by the State²⁸28. Ventura M, Simas L, Pepe VLE, et al. Judicialização da saúde, acesso à justiça e a efetividade do direito à saúde. Physis Rev. Saúde Colet. 2010; 20(1):77-100..

This third position, argues Leivas³⁷37. Leivas PGC. Princípios de direito e de justiça na distribuição de recursos escassos. Rev. Bioética. 2006; 14(1)., is the most adequate to the understanding between Health and Law in the search to secure the citizen’s access to justice and health. In this case, the judge should consider several aspects, such as whether the therapeutic alternatives offered by the SUS can meet the needs of those who demand it and whether the individual medical prescription required, compared to what is available in the SUS, is supported by scientific evidence. This position seems to be the most appropriate for other authors and can be conducive to reducing the legal demand itself. It is based on a false idea of a crack use epidemic that the court decisions of the hospitalizations addressed here are justified.

If there is an understanding that the consumption of psychoactive drugs is cultural, the reasons for this use are attributable to several social needs. These reasons are socially determined and transform the way individuals relate to different psychoactive substances, changing their meaning and consumption patterns. Therefore, this use can occur in different ways: associated with scientifically proven indications; arise from self-administration; be sporadic; specific; recreational; or harmful. Thus, these distinctions (most commonly referred to as ‘use and abuse’) will not be addressed in this article. However, it is necessary to consider that the ‘harmful or non-harmful use’ of psychoactive drugs results from interactions involving the substance, the individual, and the particular social conditions. By dualizing what is licit and illicit, the drug prohibition paradigm prohibits individuals from their consumption through prejudice and stigma, focusing on excessive repression of drugs (and the subjects relating to them), regardless of the relationship of individuals with drugs and assuming that there is a demand for interventions in any situation. Conversely, by harm reduction (grounded on the SUS), we have the principle of respect for drug users for the right to their consumption of drugs. This right is sometimes protected in the legislation in force, even in cultures where the legislation in force does not prohibit the individual from the personal use of any product or substance, even if they are supposedly harmful, as in the case of the Brazilian legislation and many other countries³⁸38. Conselho Federal de Serviço Social. O estigma do uso de drogas. Série Assistente Social no combate ao preconceito. Brasília, DF: CFESS; 2016.,³⁹39. Andrade TM. Redução de danos: um novo paradigma? In: Tavares LA, Almeida ARB, Alves Filho AN, et al. Drogas: tempos, lugares e olhares sobre seu consumo. Salvador: EDUFBA; 2004. p. 87-95..

Therefore, in this normative context (which is related to a particular conception of this drug use), it is appropriate to question whether the population, when accessing the Judiciary and inflating the Executive with excessive demands for CH, generates inefficiency to management or whether these managements are previously inefficient when it comes to offering Raps services, although this alone is not the only determinant, and whether this phenomenon in mental health, in particular, due to the issue of drugs, can be considered as a legitimate resource for closing the gap between access to health rights or has been a resource that ends up violating other rights.

Methods

This is documentary research with a survey of data available on the Espírito Santo Transparency Portal⁴⁰40. Espírito Santo. Portal da Transparência do Espírito Santo, Protest. [acesso em 2020 jan 19]. Disponível em: https://transparencia.es.gov.br.
https://transparencia.es.gov.br... , a tool developed in 2009 to disseminate the public data necessary for social control. Data referring to hospitalization payments for people who use drugs by court order were accessed on the portal – ‘beds for mental disorders and chemical dependence’. Hospitalization data were also collected: length of stay, institution data, and the amount paid for each. As an ethical procedure, any data identifying the subject was preserved to guarantee the anonymity of these people. The regulations that instruct the CH at Sesa were also organized (table 1):

All this information was organized so that it was possible to identify the institutions that hospitalize, the amounts they received, the distribution by health region, the concentration in certain municipalities in ES, and how this is in line – or not – with existing regulations. As for the time frame (2014 to 2019), the choice was based on information from Sesa, which made available data on these admissions in the Secretariat’s system only in 2014. Descriptive statistical analysis and categorical content analysis were used⁴⁸48. Bardin L. Análise de conteúdo. Lisboa: Edições 70; 1977. to analyze data.

Compulsory hospitalizations for drug use in the state of Espírito Santo: where does the money go?

ES has 78 municipalities, primarily small ones, that have been organizing the RAPS in the four health regions (Metropolitan, North, Central, and South) (figure 1)⁴⁹49. Espírito Santo. Secretaria de Estado da Saúde. Plano Diretor de Regionalização – PDR – ES 2011. 2011. [acesso em 2020 jan 20]. Disponível em: https://saude.es.gov.br/Media/sesa/Descentraliza%C3%A7%C3%A3o/PDR_PlanoDiretordeRegionalizacao_ES_2011.pdf.
https://saude.es.gov.br/Media/sesa/Desce... , according to SUS guidelines/norms. However, there is still disproportionality of actions and services in these health regions, as shown by previous studies⁵⁰50. Santos CCM, Leal FX, Jesus RS. Política sobre drogas no estado do Espírito Santo: consolidando retrocessos. Text. Cont. 2016; (15):423-436. ⁵¹51. Garcia MLT, Siqueira MM. Instituições especializadas em dependência química no Estado do Espírito Santo. J. Bras. Psiq. 2005; 54(3):192-196. ⁵²52. Oliveira EFA, Garcia MLT. The mental health policy in the State of Espírito Santo, Brazil: between achievements and disappointments. Best Pract. Mental Health: An Inter. J. 2011; (7):60-71.. In the case of spending on judicialization, these resources are not included in the Annual Health Plans or the Annual Budget Laws (LOA) of the state of ES. Sesa’s funds for this judicialization are identified as Source 010400000, Health Actions and Services (0104), Activity 20.44.901.10302.0047.4705. Between 2015 and 2018, 40,000 cases were received, and R$ 350 million were spent on health judicialization in ES53.

The ‘Sesa 2015-2018 Management Report’⁵³53. Espírito Santo. Secretaria de Estado da Saúde. Relatório Gestão 2015-2018: Avanços e Perspectivas. 2019. [acesso 2020 mar 10]. Disponível em: https://saude.es.gov.br/GrupodeArquivos/relatorio-de-gestao-3.
https://saude.es.gov.br/GrupodeArquivos/... presents an item, ‘Health Judicialization’, highlighting that this phenomenon has distorted the republican principles of equity in the SUS⁴⁷47. Espírito Santo. Lei nº 10.987, de 26 de abril de 2019. Disciplina procedimentos a serem adotados pelos médicos e odontólogos vinculados ao Sistema Único de Saúde – SUS no Estado do Espírito Santo, na prescrição de medicamentos e na solicitação de exames, procedimentos de saúde e internações compulsórias que serão prestados pela Secretaria de Estado da Saúde – SESA e estabelece outras providências [internet]. Departamento de Imprensa Oficial do Espírito Santo; 30 Abr 2019. [acesso em 2020 mar 3]. Disponível em: https://saude.es.gov.br/Media/sesa/Documentos/diario_oficial_2019-04-30_pag_9.pdf.
https://saude.es.gov.br/Media/sesa/Docum... . This item imposes unscheduled care costs on the manager, higher administrative costs to manage deadlines, and the legal burden of Court decisions. The situation is a matter of concern for state health, and although funding data are not detailed in the Report, 40 people were recruited in four years to join a sector that only addresses court orders⁴⁷47. Espírito Santo. Lei nº 10.987, de 26 de abril de 2019. Disciplina procedimentos a serem adotados pelos médicos e odontólogos vinculados ao Sistema Único de Saúde – SUS no Estado do Espírito Santo, na prescrição de medicamentos e na solicitação de exames, procedimentos de saúde e internações compulsórias que serão prestados pela Secretaria de Estado da Saúde – SESA e estabelece outras providências [internet]. Departamento de Imprensa Oficial do Espírito Santo; 30 Abr 2019. [acesso em 2020 mar 3]. Disponível em: https://saude.es.gov.br/Media/sesa/Documentos/diario_oficial_2019-04-30_pag_9.pdf.
https://saude.es.gov.br/Media/sesa/Docum... . Another aspect is the number of processes, and although the allocation is not specified, approximately 35% of R$ 350 million was allocated to CH.

The Secretariat implemented a set of actions in the definition of regulations for the accreditation of private institutions (Ordinance Nº 090-R and Nº 59-R)⁴⁴44. Espírito Santo. Secretaria de Estado da Saúde. Portaria SESA nº 59-R, de 31 de outubro de 2017. Define os critérios para internação de pacientes nas Clínicas Especializadas no Estado do Espírito Santo. Departamento de Imprensa Oficial do Espírito Santo; 31 Out 2017.,⁴⁵45. Espírito Santo. Secretaria de Estado da Saúde. Portaria SESA nº 090-R. Define os critérios para internação de pacientes nas Clínicas Especializadas no Estado do Espírito Santo. Departamento de Imprensa Oficial do Espírito Santo; 14 Out 2014. [acesso em 2020 mar 20]. Disponível em: https://www.legisweb.com.br/legislacao/?id=275778.
https://www.legisweb.com.br/legislacao/?... aimed at the CH of drug users, from 2014 to 2019. No admissions to TCs and prioritizing accredited clinics were among the targeted actions. CH outside the SUS network would only be justified by ‘the lack of beds to meet the patient’s needs and the insufficient or depleted installed capacity in the SUS network’ (justification found in CH processes).

Regarding the CH data from 2014 to 2019 (six years), the expenditure jumped from around R$ 13 million (with a deflated value of around R$ 19 million) to R$ 39 million (with a deflated value of around R$41 million) (graph 1). These data were accounted for considering the sub-element of expenditure Code 4681 – Health sector Court orders – beds for mental disorders and chemical dependence. In other words, it also contains hospitalizations for alleged mental disorders unrelated to drug use.

All resources refer to the purchase of beds in private institutions, whether nonprofit or not, except for one public institution (Association of SE Public Employees), which received around R$ 25,000 in just one year (2015). These resources derive from the Comprehensive Health Care Program as a complementary assistance action to the public network. Therefore, all payments are justified by the Court rulings with a tender waiver, with the State Health Fund as the managing unit, from Source 104 (Health Actions and Services). Sesa has information about the beds available in existing private institutions and starts to buy these beds, considering that the Court orders generally establish a reduced period (around 24 to 72 hours) for the manager to meet the demand. This search must be done by the regulatory professional (doctor) when the SUS does not have an available bed, and he is responsible for judging and deciding on each case (Ordinance Nº 2.048/2002/MS)⁵⁴54. Brasil. Ministério da Saúde. Portaria nº 2.048, de 5 de novembro de 2002. Regulamento Técnico dos Sistemas Estaduais de Urgência e Emergência. Diário Oficial da União. 5 Nov 2002..

As for the amounts paid for hospitalization, although regulation has been in place since 2013 on the operating criteria for institutions, the amounts were regulated only in 2018 through an accreditation notice (table 2). Before this, payments were made with different daily rates based on prices presented by institutions available in the market. Even with the regulation of daily rates from 2018, a persistent contradiction has always been brought about: the length of time people were hospitalized in these institutions contradicts the regulations on the length of stay. One of the institutions analyzed as an example (which received resources for four years), 72% of the 172 people admitted as CH stayed at some point for more than 60 days during their hospital stay, and we had some people whose stay reached a year uninterruptedly.

As for the allocation of resources, 36 institutions received for CH in this period (graph 2), and four of these received it every year.

About the percentage received by each of these institutions, of the 36 institutions, six stand out for receiving the highest portion funds in this period, which corresponds to more than half (59.6%) of the resources used for CH, and they are: Espaço Vivere Saúde (16.9% of funds); Espaço Viver (9.7%); Instituto Nova Aliança (9.6%); Green House Clinic (9.6%); Vitalle Clinic (7.4%); and Life Recovery Center (6.0%). The first differed from the others as it received more funds for four years (2014, 2017, 2018, and 2019) – BRL 31,078,802.95. This institution, called Espaço Vivere Saúde LTDA, is located in the municipality of Anchieta, in the south of the state, and its partner-owners are entrepreneurs from other branches in ES. They are also part of an Association of Psychiatry Clinics in the state of ES, created in 2019. The clinic has a branch – Clínica Vivere Infância e Juventude – in the same municipality that received funds in 2014 and 2019, totaling R$ 36,450,943.10, which corresponds to 19.4% of the total expenditure.

As for the location of the 36 institutions, only one is located outside ES (in São Paulo – Hospital Santa Mônica, which received an appeal in 2016 for the admission of two adolescents). Distribution by health region was as follows: 62.8% in the Metropolitan region, 34.3% in the South region, and 2.9% in the North. The concentration in the Metropolitan region ratifies previous studies⁵⁰50. Santos CCM, Leal FX, Jesus RS. Política sobre drogas no estado do Espírito Santo: consolidando retrocessos. Text. Cont. 2016; (15):423-436.,⁵¹51. Garcia MLT, Siqueira MM. Instituições especializadas em dependência química no Estado do Espírito Santo. J. Bras. Psiq. 2005; 54(3):192-196..

Regarding the year these Clinics were founded, 41.6% were created after 2011; 19.4% emerged between 2000 and 2010; and 11.1% were established before the 2000s. This information was not found for the others. The emergence of new institutions follows the rise of state payment by judicial measure. This phenomenon is not isolated from the country’s social, cultural, and political situation, a time when the appeal, especially in the media, presents hospitalization as the primary means of ‘minimizing family problems’ caused by drug use. Also, the SUS network, which is not fully implemented in the territories, marks a void of services in various state regions.

Final considerations

The data showed the disputes over the public fund without necessarily making this process evident to society. Monitoring the expenditure of public health policy resources with CH exposed the clashes between the Executive and the Judiciary regarding the right of access to health care. The disputes between the State Mental Health Coordination actions for the regulation of this process and the limits that this imposes on Secretariat technicians were also highlighted. Despite the efforts made by Sesa’s mental health sector to minimally regulate these processes, whether by the amounts paid for daily rates, or by the technical opinions of the Secretariat’s professionals, or by regulating a maximum length of stay, among other measures, we note that the gaps between what should be done (ensuring compliance with legal regulations) and what actually occurs traverse varied and complex dimensions, which transcend the norm itself and the attributions of those who should have a certain amount of control to regulate, apply, and monitor this compliance. Also, oversight bodies, such as the Public Prosecutor’s Office and public policy management councils (such as health and drugs), do not even reach information about what is happening in this network parallel to the SUS. This analysis, therefore, indicates the need to maintain this monitoring based on new questions such as the arguments used by the Judiciary Branch to ratify CH requests; the impact of the use of the resources for the SUS more comprehensively; reflections on ‘manicomialization’ in mental health as argued by drug use in society, among many other questions that the phenomenon contains.

References

Publication Dates

History