Reserva do possível e o fornecimento de medicamentos de alto custo pelo estado: a judicialização do direito da saúde

Abstract

The present study is the result of doctrinal and jurisprudential research, whose objective is to demonstrate the State's challenges in guaranteeing access to Public Health. The Federal Constitution of 1988 guaranteed several fundamental rights to citizens, including Public Health to all, and in the current scenario, this right is being treated with a focus on Human Dignity based on the existential minimum, under the possible. As the right to Health is universal, a problem arises for the Public Administration, to effectively guarantee such right, and it is the responsibility of the Executive Power to provide in budget and create public policies for access to Health. It turns out that the Executive branch difficulties in realizing these rights for all, so the society saw no other way out if it did not succor the judiciary, claiming judicially requests for medicines and access to Health, as a means of seeing the rights reserved in the larger Charter materialized. This large volume of lawsuits in the Judiciary pleading drugs, often with favorable judgments, brings a budget imbalance in the Public Administration, since the State has to reallocate financial resources to cover favorable judgments. Finally, it is tried to show that the judicial power, as guardian of the Federal Constitution, has no other way out, if it does not apply the law and compel the Executive to effect the right to Health, which has been given the name of Health judicialization Public. However, it is necessary that decisions of the Judiciary are based on the reasonableness and sensitivity of each case, also seeking scientific support for their decisions, in order to remedy this conflict between the possibility of the State and the need of each citizen to access Health Public.