O poder judiciário como indutor de políticas públicas de saúde

Abstract

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.