Introduction: COVID-19 requires governmental measures to protect peoples’ access to healthcare systems. In this process, the collision of fundamental rights emerges as a crucial challenge for decision-making.
Policy options and implications: This policy review analyzes selected articles by the PubMed searcher about pandemic extreme measures taken in several countries during precedent pandemics and the current pandemic, and selects hard decisions related to pandemic´s exceptional measures by judicial decisions in Brazil, relating them with the “collision of fundamental rights and law principles”. The collision of rights and principles imposes to decision makers the duty to provide rights balancing, and to adopt the enforcement of some rights prioritization. Ethical concerns were also verified in this field involving rights limitations. During pandemics, the importance of extreme measures to protect health rights and healthcare systems is instrumental for focused, fast, and correct decision making to avoid life losses and health systems collapse. This research has as it´s main goals the implications and guidelines for public health decision making having as indispensable ethical and legal aspects for safeguarding health systems and people’s lives the respect of the Justice principle and of fundamental health and dignity rights. We conclude that COVID-19 justifies the prioritization of collective and individual health rights access. Acceptable standards of fundamental rights restrictions are established at the constitutional and international levels and must be enforced by rules and governmental action, to a fast and accurate decision making during pandemics. Freedom rights exercise must be linked to solidarity for the realization of social welfare, of the health rights of all and for the well-functioning of health systems during pandemics.
Actionable recommendations: All individuals are free and equal, therefore social exclusion is prohibited. Institutions must consider social inequalities to take public health measures guided by ethical standards and by law principles and rules recognized by constitutional and international law for the benefit of all during health pandemics.
Conclusions: Collective and individual health rights prevail over the collision of rights in facing pandemics occurrences, case by case, in health systems protection, based on the literature, on precedent pandemics and on legitimate Public Health efforts.
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Keywords: Coronavirus Infections, human rights abuse, Right to health, court decisions, Jurisprudence
Received: 06 Jun 2020; Accepted: 19 Aug 2020.
Copyright: © 2020 Gondim Santos, Stein Messetti, Adami, Pinheiro Bezerra, Souto Maia, Tristan-Cheever and de Abreu. This is an open-access article distributed under the terms of the Creative Commons Attribution License (CC BY). The use, distribution or reproduction in other forums is permitted, provided the original author(s) and the copyright owner(s) are credited and that the original publication in this journal is cited, in accordance with accepted academic practice. No use, distribution or reproduction is permitted which does not comply with these terms.
* Correspondence: Ms. Paulo André Stein Messetti, Laboratório de Delineamento em Estudos e Escrita Científica, Faculdade de Medicina do ABC, Santo André, São Paulo, Brazil, Este endereço de email está sendo protegido de spambots. Você precisa do JavaScript ativado para vê-lo.
*Paulo André Stein Messetti é advogado formado na USP, especialista em Direito Médico e da Saúde, mestre em bioética e doutorando em Ciências da Saúde pela Faculdade de Medicina do Centro Universitário Saúde ABC. Atua na banca Stein Messetti Advocacia.
