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Over the last five years many middle‐income Latin American countries have seen a steep increase in the number of cases litigating access to curative services. The purpose of this paper is to explore this complex phenomenon and outline some of its roots and impacts.

The authors use an interdisciplinary approach based on a literature review and workshops convened to discuss the issue.

A range of reasons can explain this increased legal activity. These include: a renewed judicial approach to the enforcement of the right to health; a more demanding public interest; an increased prevalence of non communicable diseases; and limited capacity for fair benefit package.

The findings in this paper argue for the need to incorporate a rights‐based approach to health policy as a foundation of societal efforts to achieve universal health coverage in Latin America.

New hepatitis C medicines such as sofosbuvir underline the need to balance considerations of innovation, clinical evidence, budget impact and equity in health priority-setting. The purpose of this paper is to examine the role of public participation in addressing these considerations.

The paper employs a comparative case study approach. It explores the experience of four countries – Brazil, England, South Korea and the USA – in making coverage decisions about the antiviral sofosbuvir and involving the public and patients in these decision-making processes.

Issues emerging from public participation ac tivities include the role of the universal right to health in Brazil, the balance between innovation and budget impact in England, the effect of unethical medical practices on public perception in South Korea and the legitimacy of priority-setting processes in the USA. Providing policymakers are receptive to these issues, public participation activities may be re-conceptualized as processes that illuminate policy problems relevant to a particular context, thereby promoting an agenda-setting role for the public.

The paper offers an empirical analysis of public involvement in the case of sofosbuvir, where the relevant considerations that bear on priority-setting decisions have been particularly stark. The perspectives that emerge suggest that public participation contributes to raising attention to issues that need to be addressed by policymakers. Public participation activities can thus contribute to setting policy agendas, even if that is not their explicit purpose. However, the actualization of this contribution is contingent on the receptiveness of policymakers.

The paper summarizes data from 12 countries, chosen to exhibit wide variation, on the role and place of public participation in the setting of priorities. The purpose of this paper is to exhibit cross-national patterns in respect of public participation, linking those differences to institutional features of the countries concerned.

The approach is an example of case-orientated qualitative assessment of participation practices. It derives its data from the presentation of country case studies by experts on each system. The country cases are located within the historical development of democracy in each country.

Patterns of participation are widely variable. Participation that is effective through routinized institutional processes appears to be inversely related to contestatory participation that uses political mobilization to challenge the legitimacy of the priority setting process. No system has resolved the conceptual ambiguities that are implicit in the idea of public participation.

The paper draws on a unique collection of country case studies in participatory practice in prioritization, supplementing existing published sources. In showing that contestatory participation plays an important role in a sub-set of these countries it makes an important contribution to the field because it broadens the debate about public participation in priority setting beyond the use of minipublics and the observation of public representatives on decision-making bodies.