Mestrado em Direito, Políticas Públicas e Desenvolvimento Regional

URI Permanente desta comunidadehttps://repositorio.cesupa.br/handle/prefix/9

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O direito à saúde e a distribuição de medicamentos na perspectiva da justiça distributiva
(Centro Universitário do Estado do Pará, 2018-03-05) Daou, Heloisa Sami; Brito Filho, José Claudio Monteiro de; http://lattes.cnpq.br/7823839335142794; Freitas, Juliana Rodrigues; Lamarão Neto, Homero
The present study proposes an analyze about the Right to health and the distribution of medicines in the perspective of distributive justice, in order to answer the questioning of whether the State's action in guaranteeing the right to health and distribution of medicines can be considered fair. The right to health is included in the list of fundamental social rights in CRFB / 88. The Constitution recognizes it as the right of everyone and the duty of the State, emphasizing social and economic policies aimed at reducing the risk of disease and other diseases and universal and equal access to actions and services for their promotion, protection and recovery. It is in this sense that there must exist the Unified Health System (SUS): as the public policy chosen by the constituent to guarantee health to individuals and, among its actions, is the National Medicines Policy (PNM) and the National Policy of Pharmaceutical Assistance (PNAF), drug distribution policies. Therefore, the general objective of the research was to analyze the distribution of medicines that is made by SUS from the perspective of distributive justice. The research is divided into four chapters. Initially, we explored general concepts related to social rights, highlighting the fundamental aspect of these rights. Afterwards, the attribute of dignity of the human person, presented as the sole foundation for guaranteeing fundamental rights, was analyzed from the Kantian conception. Finally, the research turned to fundamental rights from CRFB / 88. In the second chapter, the study of the way to guarantee the right to health was emphasized, at which point the emphasis was placed on the understanding of the SUS as a public policy aimed at guaranteeing the right to health, PNM and PNAF, through which the individual has medicines. Then, in the third chapter, some of the restrictive conceptions of social rights were presented, and thus the full guarantee of the right to health, in order to reject such arguments. In the fourth and last chapter were presented the theoretical conceptions that best lend themselves to support the arguments defended here. The public policy of drug distribution was analyzed from the ideal of distributive justice pursued by John Rawls's egalitarian liberalism, with the possibility of complementation in Amartya Sen's theory of equality of abilities. These theories together offer a sufficient theoretical underpinnings to the defense that it is the duty of the State to grant the access to essential medicines for all people from their own individual needs, thereby ensuring the full realization of the right to health. The research used as methodology, mainly, the bibliographical survey, being the study eminently theoretical.
A eficiência como fundamento jurídico da decisão judicial e o estado de coisas inconstitucional: uma abordagem crítica à luz do debate de Ronald Dworkin e Richard Posner
(Centro Universitário do Estado do Pará, 2018) Leite, Geraldo Neves; Dias, Jean Carlos; http://lattes.cnpq.br/3343295176890460; Brito Filho, José Claudio Monteiro de; http://lattes.cnpq.br/7823839335142794; Timm, Luciano Benetti
This master’s thesis proposes a study on the role of efficiency within the Law. It aims to propose an investigation into efficiency as a legal standard to be followed by judges when making judicial decisions. The issue is relevant, as it seeks to describe and confront the problem of the crisis of efficiency of the jurisdictional provision, notably, when it comes to dealing with complex issues involving the realization of fundamental rights. The question of the use of efficiency as the basis of the judicial decision has been increasingly debated on the national scene. Although the Brazilian legal system is still strongly linked to legal positivism, there is a growing tendency for an interdisciplinary relationship between Law and Moral Philosophy, Economics, Politics and Sociology, to deal with complex judicial cases. Given this national situation, then, the question arises as to whether the efficiency of judicial decisions can be applied by investigating whether this traditional tool of economics has ethical and moral value and can therefore be considered a legal principle. The judge - and this is a concrete reality in Brazilian law - is increasingly called upon to make judicial control of public policies and, in this scenario, he has to position himself on the effectiveness of fundamental rights. It happens that the realization of these rights not only involves its fundamentality, but also the analysis of its cost, because we live - and our country, due to a strong political and economic crisis, is not far from it - in an environment of scarcity of resources. So the distribution of assets and resources also has to be evaluated by the judge, because at the moment of the judicial decision, he acts not only as controller of a public policy, but also as an occasional legislator and implementer of a substitutive public policy. In this context, he has to position himself on the distribution of assets and resources and the analysis of the efficiency of the decision, as has been pointed out, is important because the decision will generate reflexes not only for the parties to the process, but also for society.
O poder judiciário como indutor de políticas públicas de saúde
(Centro Universitário do Estado do Pará, 2017) Barros, Elaine Cristina Lopes; Dias, Jean Carlos; Brito Filho, José Claudio Monteiro de
This master’s thesis proposes a study about the Judiciary’s role in the creation, formation and implementation of public health policies. It demonstrates that the Public Power through public policies must guarantee the health to all citizens, and that, from the transforming role of the Judiciary, as part of a democratic-participatory State, if the State, by means of other Powers, refuses to provide this constitutional right, the population has the possibility to avail itself of the jurisdictional safeguards apt for the defense of the right to health for the realization of its Right, so that the means necessary for its dignity are guaranteed. In these terms, this Power has been led to adjust by means of decisions that oblige the Executive Power to attend to the litigant's claim, either by providing him with medicines or by offering the opportunity to perform exams, surgeries and treatments. It is known, however, that such participation runs against various interests resulting from the principle of separation of powers, from administrative discretion, as well as from obstacles to its implementation by economic and financial claims, as well as from non-recognition of individual ownership of this right, and these arguments are usually managed to prevent or reduce said participation. It is evident in the study that none of these arguments is sufficient to limit the interference of the Judiciary in matters related to the right to health, so that such participation becomes necessary for this fundamental right to be fully guaranteed, according to several decisions made by the Federal Court of Justice. It is also evident that, although recently this Court has recognized the general repercussion in two extraordinary appeals that deal with the supply of high-cost drugs not available in the Unified Health System (SUS) list and drugs not registered in the National Agency of (ANVISA), where the votes cast by Ministers Barroso and Fachin have put in check all this expansion of the limits of the Judiciary, which is exactly in the need of protection of fundamental rights, is believed in a final judgment capable of allowing, by means of the arguments set out here and the decisions made previously by the STF, that this extension is not deprecated, since the achievement of the individual as a human being is the first objective of the State, which is why it must be fully and effectively guaranteed. Considering that the aforementioned extension should not be unrestricted, given the limits imposed by the rules themselves and in order to avoid any abuse of power, criteria capable of guiding judgments handed down by magistrates will be demonstrated.
Política pública de educação para adolescentes infratores do estado do Pará e a realização do projeto de vida
(Centro Universitário do Estado do Pará, 2017) Silva, Gláucia Kelly Cuesta da; Brito Filho, José Claudio Monteiro de
The present study analyzes whether the public education policies aimed at professionalization aimed at adolescents who are responsible for infractions in the State of Pará, who comply with the socio-international measure, contribute to the achievement of their life project. To do so, it was necessary to tackle the problem from four thematic axes: education, understood as a means of emancipation and transformation of the human being; Socio-educational measure as a response of the public power to the transgression of the law; Existing public education policy for the recovery of socio-descendants and their reintegration into social life; And, finally, the project of life, determined in childhood and adolescence. Likewise, the information obtained from the socio-educators of the Centro Socioeducativo Feminino do Pará (CESEF) was used to establish the relationship between the vocational training received at the hospitalization unit and their life plans for post-compliance with the socio-educational measure. In order to achieve this goal, an initial analysis was made of the protection granted to the adolescent offender under the Brazilian legal system, with special emphasis on the socio-educational measure of hospitalization, given the empirical research conducted at CESEF. Secondly, education was analyzed as a mechanism of transformation and emancipation of the human being, in the light of Rawls's theory of equity, as a guarantee of the reach of the project of life and indispensable for the achievement of the objectives of socio-educational measures. From these subsidies, the analysis of the public policies of education for adolescent perpetrators of infractions of the state of Pará that carry out socio-educational measure of hospitalization, being emphasized the education with professional aims. In sequence, an analysis was made around the project of life and the way it gained importance in the study of law as a human good. Finally, it was sought to establish whether the provided professional education allows or not the achievement of the life project of these adolescents, leading to personal and professional achievement.

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