While the cannabis bill is stalled in the legislature, the judiciary ensures that patients have access to health care
Still without current regulations regarding the sanitary control of cannabis compounds, the judiciary ensures access to patients who depend on cannabinoid therapy
By João R. Negromonte
As there is no comprehensive and specific regulation on the control of cannabis-derived medications in Brazil, the Judiciary has been authorizing patients with severe and often refractory diseases to cultivate and extract medicinal oil from the plant to ensure their treatment.
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Some Bills, such as 399/15, which seeks to regulate the production, extraction, distribution, and commercialization of marijuana compounds for medicinal and industrial purposes, are being processed in the Brazilian legislative houses.
However, patients who depend on this type of therapy to ensure that their right to health is indeed guaranteed cannot wait for our lawmakers to enact a law regulating the medicinal and industrial uses of cannabis, so the solution found has been the judiciary.
According to lawyer Leonardo Sobral Navarro, Secretary-General of the Medical Law and Health Commission of OAB/SP, the discussions held in the Special Commission of Bill 399 were rich; however, after the vote and the appeal presented, it became evident that the Legislative Branch is not prepared to drive demands that require urgency. According to him, we are facing a discussion that involves health, well-being, economy, and development for the country. “The legislative branch is in default with the citizen, and, I reiterate, if this default could be quantified, the debt would be unpayable.”
An example of these legal advances was the latest decision of the Superior Court of Justice (STJ), which authorized, last month, three cannabis patients to cultivate and produce their own medication. The Sixth Panel of the STJ understood, considering the purpose of the action, that is, its medicinal applications, that the process deserved greater attention because it is a health issue and not a crime.
The use of Habeas Corpus to safeguard the right to cultivate the plant and extract the medication is a valid and important form of access. The Judiciary stands by the citizen, but one cannot think only in this form of access. “We need regulations that enable broad acquisition of cannabis products, regulating the sector, authorizing cultivation, expanding national production, importation, and also safeguarding the right of access to the plant for medication production. This would be the perfect consolidation of the constitutional principle of access to health,” highlights Navarro.
Other cases that have also gained prominence were the judiciary's determinations regarding the trade of cannabis-based medications in compounding pharmacies and the supply by health plans of these products, further highlighting the importance of power within this context.
According to Mariana German, a criminal lawyer, director of Rede Reforma, vice president of the Drug Policy Commission of Anacrim/PR, and a member of the Drug Policy Commission of OAB/PR, access to medicinal Cannabis in the country is still very deficient, despite the great achievements obtained in recent years.
Although the Law provides for the possibility that the Union authorize the cultivation of plants that may originate illicit substances for medicinal and research purposes since 1976, the normative command continues to be ignored by the Executive Branch.
On the other hand, the Legislative Branch also appears to be absolutely lagging behind and out of step with scientific reality and the needs of patients. In this sense, we see that the issue remains shrouded in prejudices and obscurantism, a situation that highlights how the powers (elected through popular vote) are guided by moral issues, which hinders progress on the matter.
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According to Mariana, the judiciary's decisions depend on the provocation of other actors in the justice system, especially lawyers who turn patients' demands into legal actions, making the achievements the result of a struggle by civil society and the work of professionals who embrace the cause.
“With a few exceptions, judicial decisions have effects only for the parties involved in the process, a situation that guarantees progress case by case but does not ensure the rights of all, which is why it is urgent that the matter be properly analyzed by the Legislative Branch,” emphasizes the lawyer. Therefore, the expansion of patients' rights depends on a lot of struggle and popular organization to pressure the Powers and ensure broad and universal access to the plant.
We still have a long way to go in the fight for cannabis regulation in Brazil, so the union of those who defend the cause and the role of civil society when choosing our representatives in government is essential to ensure that the right to health is indisputable for all patients who need cannabinoid therapy or any other treatment that requires herbal alternatives as a solution.