The court and the delivery of medecines by unified health system in Brazil : recent developments in a difficult relationship between judges and policy-makers

Eduardo Rocha Dias,Gina Vidal Marcílio Pompeu

doi:10.5102/rbpp.v8i3.5507

Eduardo Rocha Dias, Gina Vidal Marcílio Pompeu

Open Access

https://doi.org/10.5102/rbpp.v8i3.5507

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Abstract

The aim of this study is to examine the dynamics in the relationship between the Legislative and the Judiciary in the implementation of the fundamental right to healthcare in Brazil, based on a documental and bibliographical analysis of lawsuits aimed at obtaining drugs not incorporated by the Unified Health System. The enshrinement by the Brazilian Constitution of 1988 of the right to healthcare as a duty of the State and a right of all, led to the modification of the performance of judges. From the position of self-restraint of the Judiciary on the subject, there was a growing intervention in public policies related to health. The Judiciary itself, from the Federal Supreme Court (public hearing) and the National Council of Justice (recommendations and resolutions), began to dictate guidelines aimed at rationalizing the performance of the judges. Nonetheless, the Legislative also triggered a reaction to the advancements of the Judiciary, through the editing of Law 12.401/2011 and the emphasis on the consensual solutions enshrined in the Code of Civil Proceedings of 2015 and Law 13.140/2015. Recent decisions issued by the Superior Court of Justice and the Federal Supreme Court point to the inflection in the position of the Judiciary. In this sense, it is necessary to emphasize the importance of recognizing the institutional limits for the actions of the Judiciary in the control of public policies related to health as well as the establishment of institutional dialogue between the Judiciary and the Administration to overcome mutual misunderstandings and incomprehension.

Highlights

The examination of the so-called judicialization of healthcare in Brazil, from the study of the evolution of judicial decisions concerning the delivery of medicines, allows interesting considerations regarding the relationship between Judiciary and Legislative, as well as the limits to the creative activity of the judge
A more reticent position is identified regarding the granting of requests for the delivery of medicines; in a second moment, due to the constitutional order of immediate applicability of the constitutional precepts, the Judiciary, even through the action of the Federal Supreme Court, will intervene more vehemently, and in this bias determines the systematic granting of drugs, which generates greater impacts on the health budget in Brazil; the confrontation between the judiciary and the executive reveals itself and the resulting judicialization of politics
Reference should be made to the holding of a public hearing in 2009, in which the need to establish parameters for the Supreme Court’s action in judicial actions involving the right to healthcare was discussed, as well as the work of the National Council of Justice, a Judiciary agency, chaired by the President of the Federal Supreme Court, issuing recommendations and resolutions on the subject

Summary

Introduction

The examination of the so-called judicialization of healthcare in Brazil, from the study of the evolution of judicial decisions concerning the delivery of medicines, allows interesting considerations regarding the relationship between Judiciary and Legislative, as well as the limits to the creative activity of the judge. 11 In accordance with the precedents of the STF (SL 47 AgR, Tribunal Pleno, judged on 17-3-2010), of the STJ (AgRg no REsp 1136549/RS, judged on 8-6-2010) and the TNU (REQUEST 200481100052205, DOU 11-3-2011), the operation of the Unified Health System (SUS) is joint liability of the Union, the Member States and the Municipalities, so that any of these entities have legitimacy ad causam to appear in the passive demand pole that guarantees the access to the medication for people deprived of financial resources This is because there is no constitutional provision that determines that a federated entity only has the duty to provide medicines, to the exclusion of others. It is to be hoped that such diploma will serve to instil greater deference from the Judiciary to administrative decisions, to help overcome the prevailing conception that the Judiciary may ignore the public policies drawn up by the legitimized bodies

The actions of the Legislative and current trends in judicial decisions

Findings

Conclusion