Technical notes issued by NATJus may reach divergent conclusions, and this variation has identifiable causes

Abstract

The Technical Support Centers of the Judiciary (NATJus) produce technical notes that inform court decisions on access to health technologies, and the rulings of the Brazilian Federal Supreme Court (STF) on Themes 6 and 1234 have increased the influence of these technical-scientific documents on judicial practice. The finding that technical notes on the same technology and the same diagnosis may reach different conclusions is sometimes read as a sign of technical weakness. This article examines six sources of divergence among technical notes, namely, the evolution of scientific evidence over time; updates to the recommendation reports and Clinical Protocols and Therapeutic Guidelines (PCDT) issued by Conitec, the national committee responsible for health technology incorporation into the Brazilian Unified Health System (SUS); the clinical particularities of patients who share the same International Classification of Diseases (ICD) code and request the same technology; the incompleteness of the documents submitted in the lawsuit; the degree of uncertainty in the available evidence; and differences between state and municipal health policies. We argue that a measure of inconsistency, detached from the analysis of each specific case, cannot distinguish legitimate variation from error, and that part of the divergence stems from the very contextualization expected of a technical note. Themes 6 and 1234 represent progress toward more consistent decisions, but they are structured around Conitec assessments. For cases without a Conitec assessment, consensus is needed on how to analyze uncertain evidence and on the role of economic evaluations, along with standardized fields in technical notes that make explicit the reasons behind each conclusion. Reducing the role of NATJus would not resolve the divergence and would likely widen it, as decisions would once again rely on documents produced by the parties to the lawsuit, with no common method and no attempt to manage conflicts of interest. It would also interrupt the continuous improvement of technical notes and undermine trust in the documents that provide judges with an independent analysis of the evidence.