O PARADOXO DA JUDICIALIZAÇÃO DA CANNABIS: ENTRE A EFETIVAÇÃO DO DIREITO À SAÚDE E A INSEGURANÇA JURÍDICA

Abstract

Access to medicinal treatments based on Cannabis Sativa in Brazil presents a paradoxical scenario. While judicialization has been consolidated as the primary means of enforcing the fundamental right to health, the lack of a clear public policy, combined with the controversial distinction created by ANVISA (the Brazilian Health Regulatory Agency) between "Medicine" and "Cannabis Product," subjects patients to a state of complete legal uncertaintyBased on a qualitative, bibliographic, and documentary analysis, this study investigates the decisive impact of this regulatory classification within the courts. It demonstrates how this distinction determines the burden of proof and the applicable "general repercussion" thesis (tese de repercussão geral), thereby explaining the disparity in rulings for analogous clinical situations. Furthermore, the paper highlights an evidentiary gap between the medical prescription—which is based on clinical evidence and the patient's specific conditions—and the opinions issued by the Judiciary's Technical Support Centers (NATJUS), which often disregard these specificities It is concluded that overcoming this conceptual and procedural impasse requires the establishment of a unified regulatory framework and the implementation of consistent public policies.