O direito fundamental à saúde: sua efetivação no âmbito do SUS, por meio da atuação do poder judiciário na perspectiva da cidadania

Abstract

The scope of this work is to make explicit the growing number of protocolized process aimed at obtaining public services and benefits related to health due to the fact that the Unified Health System, a priori, does not materialize this right to the citizen. Among the specific objectives outlined, the analysis of the theses of the STF, in general repercussion, and of the STJ, in a repetitive resource, stand out, in addition to undestanding the contradictions expressed by health policies, in the midst of capitalist society and its implications in the guarantee of citizenship rights, as well as highlight the production of knowledge about the judidicialization of the right to health and underlake a debate between the principles of the existencial minimum and the reserve of the possible, with a view to the effectiveness of the dignity of the human person. With regard to the general objectives, the aim is to identify anda analyze the doctrine, theses and dissertations, as well as the judgments of the STF and STJ, respectively in general repercussion and in repetitive resources, in the area of health in the perspective of the implementation of the rights. As for the problem, the convergences and divergences expressed in the different studies of the judicialization of health in its interface with the prevailing jurisprudential understanding of the Superior Courts in the perspective of rights are outlined. In relation to the guiding principle, it is extracted that the production of knowledge and the jurisprudence in the interpretatin of the law express more convergences than divergences, in the face of the contradictions presented in the capitalist society, denoting the precariousness and fragility in the effectiveness of the health policy given the omission of public entities, under the argument of the prevalence fo the reserve of the possible to the detriment of the right to the existential minimum, with a view to the dignity of the human person. From this perspective, the intended study is the doctrinal and jurisprudential debate on the legitimacy of the Judiciary to guarantee the realization of the right to health, notwithstanding that public entities, with the aim of hindering such achievement, invoke theses inherent to the principles of separation of powers, the budget forecast and the reservation of the possible. The research was organized around three focuses: the right to health, the judicialization of health and the right of citizenship. In the end, judgments, in general repercussion and in repetitive appeal, were collected to demonstrate the importance of their use in the reasoning of the decisions recorded in the procedural bulge, in particular, with emphasis on health, as well as the convergences and divergences of judicalization were traced of health, with emphasis on its positivity for the achievement of the individual right to health, provided for in the Federal Constitution