A judicialização do direito à saúde: estudo dirigido ao indeferimento de fármacos não fornecidos pelo SUS no estado de Alagoas

Abstract

Health is the right of all persons and it is incumbent on the Government guarantee it. In relation to medicines not supply by the Brazil’s Unified Health System (SUS), requests for provide by means of lawsuit are increasing. Recognizing the Judiciary importance as a tool for the effectiveness of social rights, and in particular the right to health, this study is about the process of Judicial Review of health in the state of Alagoas. The purpose of this research it was to evaluate the arguments that characterize the rejection of requests for medicines not incorporated into the SUS. The main objective it was evaluate the arguments that characterize the rejection of requests for medicines not incorporated into the SUS. It was verified if the arguments were legitimate and attached to the requirements established by the Brazilian Superior Court of Justice (STJ) or if they were as a restrictive element of the citizens' fundamental rights. For this, 999 technical opinions were observed, prepared by a pharmacist employment relationship to the Interinstitutional Health Center (Nijus), which subsidized the Public Defender's Office of the State of Alagoas (DPE-AL) in demands address medicines in the year 2018. It was found that 660 individual lawsuits required medications not provided by the SUS, however, only in 167 were identified some type of rejection, tottalizing 11 differents justifications for this. The reason for the highest incidence for rejection of the preliminary injunction was the absence information about the use and ineffectiveness of similar drugs made available by the SUS for the pathology treatment. This argument was legitimate, since it is one of the requirements established by Theme 106 of the STJ. Insufficient budgets ranked second and outdated prescriptions were the third cause. The other causes had a relatively lower incidence, appearing in isolated cases. In terms of judgment, the most expressive cause it was the rejection of the initial petition for absence of evidence and passive illegitimacy of the claimant. This fact led to the judge defunct the process without resolution of the merits. As for these, no legal or jurisprudential support was identified, mainly because the judgments were later annulled or reformed on appeal, proving to be dissociated from the role of the Judiciary in social pacification and in the yield of judicial services.