A judicialização do direito à saúde : os reflexos da inobservância das competências administrativas.

Abstract

This monographic work deals with the theme "the judicialization of the right to health: the consequences of non-compliance of the administrative competencies". It is intended, in the light of the literature and the recent and relevant decisions regarding the current situation, to analyze, to discuss and to present the main theoretical and practical aspects that involve this problem. For this, the hermeneutic methodology is used, through the technical procedures of bibliographical research, which consists of the analysis and comparison of books and articles of the main authors of the Law who deal with this problem, and of a case study. Based on what is affirmed in the Federal Constitution, it is understood that health is a right of all and a duty of the State. Thus, it can be concluded that all the entities of the federation are also in charge of providing pharmaceutical assistance, which is, moreover, corroborated by the majority case law. However, when analyzing the normative framework that governs the Unified Health System, it can be seen that the entities of the federation have distinct and well defined competencies, which avoid overlapping efforts and keep the public system in effective exercise. It happens that when the Judiciary mitigates such administrative rules, it ends up putting in risk the functioning of Unified Health System itself, because it reallocates the funds that were destined to the care of the entire population so that the medical needs of one or a few individuals are supplied. In this sense, considering, in addition, the large contingent of lawsuits whose object is the dispensation of medicines, it is essential to stabilize the right to health to define certain criteria to be adopted by the Judiciary.