Da obrigatoriedade do Poder Público no fornecimento de fármacos não constantes na RENAME à luz da Constituição Federal.

Abstract

Although the article 196 of the Federal Constitution stablishes that it is the Public Power’s duty to effective grant the fundamental right to health, sometimes its effectiveness does not occur, reason why, in the course of this work, it is intended to study the medicine supply, in which the citizen need a certain medicine, due to the pathology that affects him and, in turn, requires it to the Federation’s Institutes administratively, but, often, is not successfully due to the scarcity of financial resources or because the drug is not listed in the National List of Essential Medicines (RENAME). The core of the study resides in this issue, that is, when the requested medicine is not listed in the RENAME, and there is no other alternative to the needy other then provoking jurisdiction in order to obtain the desired treatment by judicial determination. On this line, the Superior Court of Justice ruled on April 25 of 2018 the Special Appeal number 1.657.156, which dealt with the obligation of the Public Power to supply medicines that were not included in the normative acts of the Unified Health System, in the sense that the State must provide medicines that are not include in the normative acts of the Unified Health System, however, in observance of the cumulative presence of some requirements. In this sense, considering a situation in which a citizen in faced with the negative on the supply of a certain medication destined to the treatment of its pathology in the administrative area and, subsequently, enters with a demand in search of the satisfaction of its pretension in the judicial sphere and is faced with requirements to enjoy its constitutionally established right that this problem calls for a deeper understanding, since there are those who understand that said decision constitutes an affront to the Federal Constitution of 1988, reason why, the present monographic work, carried out with the aid of doctrine, jurisprudence, periodicals and legislation has the purpose of analyzing the State’s (latu sensu) duty to guarantee it’s citizens the constitutionally stablished and fundamental right to health. Furthermore, it should be mentioned that there are several principles that subside the decision of the Superior Court of Justice, such as the principle of the reserve of the possible and the equity principle, not seeming to confront the provisions of the Federal Constitution.