JUDICIALIZAÇÃO DO DIREITO À SAÚDE NO BRASIL: A IMPORTÂNCIA DO EMBASAMENTO CIENTÍFICO NA CONCESSÃO JURISDICIONAL DE NOVAS TECNOLOGIAS E TRATAMENTOS MEDICAMENTOSOS NÃO INCORPORADOS AO SUS

Abstract

With the maxim that health is a good that we cannot afford, the research was carried out on the growing increase of the judicialization of health and the search for medicines not yet incorporated into the SUS, in order to identify how magistrates with legal training decide on matters of health. Thus, a bibliographic review research using the deductive method is carried out. In this regard, it is noted that magistrates decide, as a rule, based on personal feelings, showing themselves to be indifferent to rational and scientific criteria, in addition to disregarding the law based on evidence. In this course, it is essential to adopt criteria based on science, respecting the precedents of the Superior Courts. We identified the National Council of Justice as having a central role in the search for more appropriate decisions, supporting magistrates upon the elaboration and regulation of NatJus and e-NatJus. In addition, it is plausible that the magistrate take into account that his decision has the power to cause effects that go beyond the parties of the process, having to be aware that individual justice can turn into collective injustice, the judiciary is not a refuge of common sense.