Moraes suspends judgment on new medical courses

Minister Alexandre de Moraes, of the STF (Supreme Federal Court), requested a review (more time for analysis) and suspended the trial that will decide the rules for creating new medical courses in Brazil. The case returned to the Court's virtual plenary session this Friday (9.Feb.2024) after being held up for more than 4 months.

The Court judges two actions on the subject: ADC (Action Declaratory of Constitutionality) 81 and ADI (Direct Action of Unconstitutionality) 7187. The target is article 3 of the Mais Médicos Law, sanctioned in 2013, which established as public policy prioritizing the opening of medical course places in regions with a lower concentration of doctors per inhabitant.

In one of the actions, the Anup (National Association of Private Universities) claims that court decisions do not apply the requirement for a public call for vacancies. The ADI presented by the Council of Rectors of Brazilian Universities argues that they violate the principle of free enterprise and free competition.

In a preliminary decision from August 2023, the case's rapporteur, Minister Gilmar Mendes, determined that new vacancies for medical courses in private institutions can only be created if they meet the requirements stipulated by the Mais Médicos Law (12,871 of 2013).

According to Gilmar, new medical courses “already installed” per “force of judicial decisions that dispensed with the public call and imposed the analysis of the procedure for opening a medical course or expanding places in existing courses” will not be affected.

The decision was taken to the virtual plenary of the STF for a referendum by the other magistrates in August, but the trial was interrupted 3 times due to requests for views from ministers Luiz Fux, André Mendonça and Moraes. In the meantime, the injunction remains valid.

WISHES

“I note that the public call system appears to be adequate for the objective set by the Public Authorities. The inducing state policy allows the installation of medical schools in regions with a reduced supply of doctors and health services, linking the economic performance of private agents to the public purpose of improving the public equipment of the Unified Health System”, says an excerpt from the rapporteur’s vote. Here's the complete (PDF – 317 kB).

“As can be seen, the public call policy has an immediate impact on the decentralization of health services, as the installation of the college itself results in the injection of financial and human resources into the local health infrastructure.”

Here is the summary of what Gilmar Mendes decided:

• new vacancies for medical courses already installed – are maintained;
• administrative proceedings that are in court due to a court decision and have gone beyond the initial stage of documentary analysis (read more below) – will continue, but everyone involved will have to observe whether the new medicine course or the new vacancies on the existing course fully comply with what the Mais Médicos law says;
• administrative processes that did not go beyond the initial document analysis phase – are suspended.

Minister Fux followed the rapporteur's vote. Minister Edson Fachin opened a disagreement because he did not agree with the possibility of maintaining the processing of processes already initiated by court decision. He defends that pending administrative processes be extinguished.

“If the administrative processes currently in progress are maintained, there is the potential for the opening of around 50% more medical courses in addition to those already operating in the country”, says an excerpt from Fachin’s vote. Here's the complete (PDF – 142 kB). That vote was accompanied by minister Rosa Weber, who retired in September 2023.

André Mendonça voted this Friday to suspend all processes calling for the opening of new medical courses until a new analysis of the More Doctors Law is carried out. The minister requested that the Ministry of Education evaluates public policy regulatory instruments within 180 days and requested the creation of a working group with the participation of civil society to review the impact of the More Doctors Law.

The objective, according to Mendonça, is to promote a “second look” about legislation. “The redefinition of public policy must be based on a prior regulatory impact assessment, based on the best indicators for medical education, ensuring the effective participation of civil society groups directly interested in or potentially impacted by the public policy in question.”

“I believe it is necessary to determine that administrative and judicial requests and procedures aimed at opening new courses — or expanding vacancies in existing ones — be suspended until the work necessary for the regulatory reanalysis determined above is completed”, says an excerpt from the vote. Here's the complete (PDF – 635 kB).

UNDERSTAND THE LEGAL DISPUTE

O Power360 prepared a history to explain the case in 9 points:

• 1 – In 2013, the More Doctors Law establishes that the government would adopt as a public policy to prioritize the opening of medical course vacancies in regions with a lower concentration of doctors per inhabitant. The program sought to take professionals to places in the interior of Brazil with a shortage of doctors.
• two – From 2013 to 2021 (last year with available data), the number of freshmen in medicine courses more than doubled: from 18,960 for 43,286.

• 3 – After the 2013 law, the concentration of students in the largest cities falls.

• 4 – With the increase in the number of doctors and criticism of the low quality of some private colleges, the government Michel Temer (MDB), in 2018, instituted a moratorium (complete – 353 KB). Prohibits new vacancies in medical courses for 5 years. The moratorium determines that, during this interval, there would be an evaluation of public policy.
• 5 – With the delay in starting the evaluation, some colleges started to file injunctions in court, asking for the creation or expansion of the number of places in medical courses, under the argument that the government is restricting the private sector.
• 6 – Court decisions grant more than 1,000 vacancies in injunctions and provoke a judicial race by colleges asking to increase the offer. Survey of Anup estimates that if all requests were granted, 20,000 new vacancies would be created.
• 7 – The injunctions allow new vacancies to be created in any city, including in regions where there are already many doctors, which goes against the spirit of the More Doctors Law. Educational groups that invested in opening courses in less populated regions (and of less commercial interest) start to feel harmed.
• 8 – In June 2022, action filed by Anup in the STF calls for the constitutionality of the More Doctors Law to prevent the opening of vacancies in medical courses with injunctions. The process is still ongoing.
• 9 – On April 5, 2023, end the effects of the moratorium. The Lula government publishes a new ordinance the following day. The new document allows the opening of medical courses, but reinforces the location criteria set out in the More Doctors Law.