JUDICIALIZAÇÃO DA SAÚDE E A DEFINIÇÃO DE CRITÉRIOS PARA A CONCESSÃO JUDICIAL DE MEDICAMENTOS NÃO INCORPORADOS AO SUS

Abstract

The present study analyses the phenomenon of the judicialization of the right to health, with a focus on lawsuits for the granting of medicines not provided by the Unified Health System (SUS). The 1988 Federal Constitution was a milestone for the right to health in Brazil, however, its implementation is still limited. In this context, activating the Judiciary has become a means of guaranteeing access to public health services. With the increase in legal demands demanding health benefits, the intervention of the Judiciary in public policies has become significant, raising questions related to the separation of powers, the principle of reserve for contingencies, and the concept of the minimum existential threshold. Thus, the work aims to evaluate the definition of requirements for health demands as a way of limiting the impact of judicial decisions on the execution of public policies. This qualitative research is based on a bibliographic and documentary review, including an analysis of Brazilian case law and legislation. Initially, an overview of the right to health, as established in the Federal Constitution, will be presented. The second chapter is dedicated to judicial activism, which will be considered from different perspectives to understand its positive and negative impacts. Finally, ways of optimizing judicial protection in health demands will be analyzed, with an emphasis on the theses established by the Federal Supreme Court (STF) in General Repercussion themes nº 6 and nº 1,234, which establish objective criteria for the judicial provision of medications outside the official SUS lists, are examined as a means of providing greater legal certainty.