Instituto da tutela antecipada de urgência para tratamentos experimentais no âmbito da judicialização do direito à saúde

Abstract

Among the most varied legal aspects related to the fundamental precept of the social right to health and the constitutional principle of human dignity, the theme of this study is contextualized within the judicialization of the right to health. The theme is delimited to the institute of urgent preliminary injunction for experimental health treatments, focusing on the limits and admissions of the right to health as a State duty, having the social and academic relevance of addressing the urgent preliminary injunction for experimental health treatments. In the context of the judicialization of the right to health, the objective of this paper is to analyze the implications of the institute of urgent preliminary injunction to the judicialization of the right to health in the access to experimental health treatments. This is a research with a qualitative approach, which uses the hypothetical-deductive method. As to the means, it is a bibliographical and documental research, and as to the objectives, it is classified as exploratory. The results obtained point out that, after comings and goings in decisions of Extraordinary Appeal No. 566.471/Rio Grande do Norte, the Judiciary within the scope of its assignment, with the decision in plenary session of the STF by the obligation of the State, with the binding nature of the case law of the Major Court, once there is uncertainty whether there is prevalence between irreparable damage to health of the active pole or the monetary loss of the passive pole, it is imperative that there is no inclination of granting injunctive relief. It can be concluded that, when the claim related to the right to health for guarantee of medical treatment has as defendant the Government, it is known that the state has no obligation to provide high-cost drug without registration at ANVISA, because in 2020, in a decision in the Plenary of the STF, the majority of ministers decided to release Rio Grande do Norte from the obligation to provide high-cost drug without registration at ANVISA. Therefore, even though the urgent preliminary injunction is endowed with all the necessary assumptions for the granting, in order to preserve the minimum existential, that there is a material risk of damage to the public coffers, the State is not obliged to provide high-cost drugs without registration at ANVISA.