A concretização do direito fundamental à saúde e a judicialização do acesso a medicamentos: em busca de parâmetros adequados para a tutela judicial

Abstract

This study examines, in the theoretical framework of the contemporary conception of human rights, the right to health, in the form of access to medicines, especially in relation to its recent process of judicialization. It starts from the approach of the supranational character of the human right to health, demonstrating its positivation in various international treaties, particularly the ICESCR - International Covenant on Economic, Social and Cultural Rights, which features prominently relevance in this study. It demonstrates the foundation of the fundamental right to health in the Brazilian Constitution, which considers it as everybody´s right and duty of the state, which has the responsibility to structure Brazilian Health System through guidelines such as the universal and equal access, completeness and gratuity. It goes through the issue of dispensing drugs policy in Brazil as a way to contextualize the process of conception and update concerning to official lists of medicines, also affirming the existence of a mutual responsibility between the various state entities about this matter. Seeks to show how Brazilian courts interpret the right to access to medicines, making use, therefore, of many judicial decisions and relevant votes. Highlights the path taken in Brazil, over the last two decades, from ineffectiveness, as a rule, until the current phase of constant and, sometimes excessive, judicialization. Analyses some of the critics commonly directed to judicialization and seeks to reveal the discourse of the courts with respect to issues such as the economical possibility reserve clause, the existential minimum and the non-regression obligation. Examines the relevance of the Public Prosecutor, Public Defender’s Office and civil society regarding the effectiveness of the right to access to medicines. Over the last chapter, shall build some parameters, which are related to each specific form of judicial protection, collective or individual. Proposes, for both, the adoption of a moderate degree of judicial activism and suggests the priority of collective protection with regard to the individual one, in order that first consists in court privileged locus for the discussion of budgetary matters and universalization of the pled provision pled to all the hypo sufficient. It also builds some limits on the judicial award of medicines, especially in the case of substance not included on the official list, not available in the Brazilian market or even experimental.