A judicialização como alternativa para a efetividade do direito social à saúde: discussões acerca da adequabilidade e eficiência da atuação do poder judiciário

Abstract

The present work aims to discuss about the judicialization as an instrument that guarantees the effectiveness of the social right to health. The construction of social rights in the world and its normative consolidation in Brazil since the Federal Constitution of 1988, have been historically demonstrated. In view of this, it was tried to emphasize the creation of the Brazilian National Health System (SUS) as an important public policy aimed at guaranteeing the right to health in a universal and egalitarian way. However, it is evident in the work that, in the midst of the state's deficiency in providing health in a comprehensive and effective way to all society, judicialization emerges as an alternative to promote the realization of the social right to health. In discussing the judicialization of public health policies, the work raises the question of the separation of powers and the possibility for the Judiciary to impose on the public entities the supply of medicines and medical procedures of high cost. In addition, the paper analyzes the adequacy of judicial decisions in health, verifying the reasonableness of the criteria defined by the Superior Court of Justice (STJ) for the Judiciary to determine the supply of medicines outside the Brazilian National Health System (SUS) list. It also highlights the inefficiency of the judicial decisions that impose on the public power the supply of medicines and treatments and analyzes the causes of this problem. From this, the performance of the 3rd Federal Court of the Judiciary Section of Paraíba in the judgment of health demands highlights, demonstrating the mechanisms that it has been using in order to promote a greater degree of justiciability and effectiveness in compliance with decisions. In addition to the example of the 3rd Federal Court, the work highlights the importance of using other innovative tools as a means of promoting the right to health. The work was developed from the deductive method, starting from general ideas and concepts, to specific ones. In addition, a bibliographic research was carried out, through the collection of information in scientific articles, books, dissertations and theses on the proposed theme, in addition to the research in legal documents such as legislations, resolutions and jurisprudence of the courts. In addition, the study used quantitative data obtained from graphs based on information provided by official departments. Finally, the study concluded that the judicialization is a viable and essential alternative to the realization of the social right to health.