A JUDICIALIZAÇÃO DA SAÚDE NA BUSCA DE TRATAMENTOS COM MEDICAMENTOS DE USO OFF-LABEL: INTERPRETAÇÃO DOS TRIBUNAIS SUPERIORES SOBRE O ALCANCE DO DIREITO À SAÚDE.

Abstract

This study aims to analyze the problems encountered in the search for the supply of off-label drugs and the refusal of the State in the absence of indication for the use of the drug for the treatments sought, correlating the effectiveness of access to health and the reasons of the government to exercise the refusal, as well as the reasons of the judiciary to position itself in the applicability of public health policies, considering its legitimate activity based on the separation of powers and its responsibility to determine the applicability of the rules in case of action or omission by the State that violates the legal order, considering that these drugs are prescribed and used daily, as is the case of specific populations such as rare diseases, children, the elderly or even pregnant women, who, by their own characteristics, present difficulties for studies and clinical trials to be conducted until the authorization of the use of the drug. The difficulty in access is limited from the moment the supply is required by SUS. Judicial action in health claims arises, then, with the exercise of society in search of the right to health, questioning the effectiveness of the constitutional guarantee in relation to this and the limits existing for the exercise of judicial determinations for the fulfillment of access to such medicines. In this sense, concrete cases and the position of the Superior Courts in the Brazilian context will be analyzed, as well as the reasons for denials and their applicability in relation to the supply by SUS in comparison to the private network.