O fornecimento de medicamentos de alto custo : um debate sobre as razões e fundamentações de sua possível concessão no direito brasileiro.

Abstract

With the overwhelming increase in legal claims for the acquisition of high-cost drugs, this research was necessary in order to investigate a little more about the concession of high-cost drugs through the Brazilian legal system. So, considering the current legal format and the administrative organization of the right to health in Brazil, do judicial decisions that grant high-cost drugs not provided for in the Health Unic System (SUS), find legal and constitutional support? To answer this question, the method of approaching the hypothetical-deductive content was used, from which the right to health was analyzed as a fundamental right in the Federal Constitution of 1988 and the importance of the health movement for the granting of equal health, with the study of constitutional and infraconstitutional regulation of the right to health, as well as the legislative and administrative competence of the federal entities in relation to Brazilian public health. In the same way, the organization of the Health Unic System is exposed, with principles, precedents and norms that established limits to the minimum production of health by the public power, through public policies that are planned in order to meet the demands of health. The debate on the concession of high-cost drugs ends with the opening of political-administrative competence, through arguments such as the minimum existential and the reserve of the possible, which serve as beacons for the reasoning of the Supreme Federal Court in RE 566.471 and in RE 657.718, making it possible, therefore, for individuals who need it, to supply “exceptional” medicines, as the only measure capable of avoiding a death sentence, by increasingly expensive medicine.