Observatório do judiciário sob a ótica do direito à saúde: repensando sua dimensão processual e a aplicação de precedentes judiciais

Abstract

The constitutionally assured fundamental rights grant to the individual the right to governmental services, giving ground to the idea of these rights being subject to justiciability, presently evaluated under the standpoint of health, and bestowing upon the Judiciary a current role in its implementation. In the realm of the individual and collective dimension of the right to health, it is observed that the Courts have acquired increasing social visibility: they aren't the only avenue to make these legitimate interests effective, although society sees the Courts as the holders of the obligation to collaborate with other governmental instances in the formulation of public policy, promoting, together with the Executive Branch, social inclusion. Because of the need to reform the Judiciary System after the explosion of litigation observed in the wake of the democratization of the country, a diagnosis of the delivery of justice on the topic of health was made, by means of checks on the Judiciary Branch from the viewpoint of right to health. Judicial decisions on health matters by the Federal Supreme Court, the Superior Judiciary Court, and the Judicial Court of the State of Minas Gerais were analyzed, with focus on the delivery of very expensive oncology medications by the government. It was possible to verify causes for the lack of judicial effectiveness in health matters, as well as the often inadequate application of the theory of judicial precedent, which is recommended to be rightly adopted and utilized in Brazil, with the goal of making the judicial decisions on the matter more rational. Other mechanisms such as class actions for the right to health and the strengthening of alternative methods for conflict resolution are also recommended as a way to re-size the high number of litigation in this context. Finally, a model for the management of administration of justice that will allow procedures to become less bureaucratic, as well as make expeditiousness compatible with judicial security, is one of the recommended solutions to provide the Judiciary Branch with the means to face the challenges of the current century.