A JUDICIALIZAÇÃO DA SAÚDE E OS FUNDAMENTOS UTILIZADOS NAS DECISÕES DOS JUIZADOS ESPECIAIS FEDERAIS CÍVEIS DE SÃO LUÍS – MA

Abstract

Objectives: In view of the increasing role of the Judiciary in the implementation of public health policies, the Federal Special Courts (JEFs) appear as an important instrument of access to justice for those in need of protection involving the right to health. In this research we seek to understand the phenomenon of the judicialization of public health in Brazil, with an emphasis on the peculiarities of this type of demand within the scope of the Special Federal Civil Courts. We analyzed the ethical, factual, normative, and jurisprudential foundations used in the decisions of the JEFs of Sao Luis / Maranhao-Brazil, from March 31, 2014 to March 31, 2019. Methodology: We start from the deductive method with a qualitative and quantitative approach, with a bibliographic and documentary procedure. In the qualitative approach, to categorize the information obtained, the content analysis method was used, with categorization, inference, description, and interpretation as methodological procedures. Results: We demarcate that, given the absolute competence of the Civil JEFs, it became essential to correctly define the economic expression intended with the cause, as a way to avoid delay in the provision of health protection. We observed that there is a prevalence of ethical motivation in the basis of the judicial decisions analyzed, we also found that the instruments developed by the National Council of Justice (CNJ) were precarious in improving the jurisdictional provision in the case of health demands. Contributions: We raised the need to build mechanisms capable of guaranteeing similar judicial provision for similar situations, as a way of eliminating any kind of judicial lottery. There is a need to comply with the instruments developed by the National Council of Justice (CNJ) and the Ministry of Health (MS), as a way of guaranteeing good faith and legal security in the demands on the subject.