A judicialização das políticas públicas de saúde: interlocução entre os princípios da integralidade e isonomia

Abstract

The research analyzed the phenomenon of the judicialization of social public policies under the principles of integrality and isonomy. This phenomenon is growing in Brazil, especially since the Constitution of 1988, which guaranteed fundamental rights to be densified through public policies enforced by the Judiciary, Executive and Legislative and also by the civil society, as a mark of the attempt to deploy the Welfare State. In this context, the Judiciary is in charge of guarding the Constitution and the citizens against the trespassings of the State (by action or default). The right to health, as a social right, is guaranteed in the article 1986 of the Constitution. Through the rights to access the Judiciary and to petition, more and more people sue the State in order to obtain access to the health system. On account of the principle of the inevitability of the jurisdiction, millions of sentences are ruling that the State shall provide certain things in individual cases. However, treating the right to health as an individual right is not consistent with its nature. The judge lacks much technical knowledge to decide over anything the State provides through SUS, or at least to decide in a socially responsible way. When he rules that the State must provide certain treatment in an individual case, the judge is interfering in the organization and general logistics of SUS, in the previously allocated budget to health (proposed by the Executive and approved by the Legislative – both composed by elected representatives who have democractic legitimacy, something the judges do not have) and in the order of treatment of the citizens who already stand in line (even though they are equal among themselves, according to the Constitution). Besides, data proves that the simple raise in investments in healthcare policies does not improve significantly the general health conditions of the people. Therefore, it seems irresponsible that the State reserves most of its resources to healthcare when, in truth, the economic development of the country as a whole improves more significantly the individual health. This paper attempted to understand the judicialization of the right to health in Brazil, the nature and impact of the judicial rulings to the civil society and to the State. By comparative institutional analysis, the study probed which is the better suited institution to deal with such claims. This was done through systematic literature review. In addition to it, the collective suit was discussed, as an option to decide more efficiently and isonomically than through individual suits, since the collective one was born exactly to deal with social rights. Ultimately, this paper discussed who is better suited to make the hard choices, ethically, about how to allocate the always insufficient resources to provide all the fundamental rights. All the while considering the human dignity, who must decide and how must such decisions be made about the distribution of the scarce resources among all of them?