O custo da judicialização da saúde: uma análise do emprego eficiente dos recursos públicos na promoção do direito à saúde a partir de pesquisa empírica realizada em município fluminense

Abstract

The complexity of the judicialization of health in Brazil demands analyzes of its various aspects, causes and effects. This investigation, conducted from inductive and deductive methods, aimed to understand the subject from the perspective of its budget impact on the public resources, based on empirical research about demands intended to obtain health benefits, which were proposed between 2013 and 2019 in a small town in the state of Rio de Janeiro. For this, was approached, initially, the legal post-positivism, philosophical current that spread after World War II, that lead to the recognition of a normative legal system composed of rules and principles, built from the contributions of Dworkin (2002) and Alexy (2002), as well in the conduction of the human person’s dignity towards the core of the constitutionalism. Among the main effects these transformations, must be highlight the constitutional opening to the notion of material equality and the legitimation of the interests of underprivileged groups, which had an impact on the recognition of the urgency of state actions focused on the idea of dignified life, through the guarantee of na existential minimum. Also, the main historical factors of the consolidation process of health being recognized as a right in Brazil was presented, which lead to the implementation of a unified system designed to be universal, whole and egalitarian. To offer subsidies to a critical analyze, were highlighted some health systems in the world, regarding also their measures of responses to the new coronavirus pandemic. Additionally, it was sought to examine the phenomenon of the judicialization of the health from the construction of the notion of the justiciability of the corresponding right and, thus, of the reflections about the essentiality of the health benefits, na aspect that holds some doctrinaire divergences capable of reverberating in the discussions around of the possibility of judicial review of the public policies. The considerations about this matter established milestones in jurisprudence of the Federal Supreme Court and of the Superior Court of Justice, detailed in this investigation, including the search for a hermeneutical rationality, according to the Theory of Legal Argumentation, of Alexy (2017). In addition, expatiated on the empirical research developed, comparing the results achieved and the data collected by Brazilian National Council of Justice in the Report “Judicialização da Saúde no Brasil: Perfil das Demandas, Causas e Propostas de Solução” (BRASIL, 2019c), important document about the thematic of the judicialization of health. Finally, was approached the financial impact of the lawsuits on the city’s health budget, considering the population assisted and the possibility of relocation of the public funds, to achieve a notion of efficient management of the public resources. The said examination, shown in the cost-effectiveness perspective, aimed to consider both the investment made and the health benefits made possible. It was concluded that, while the judicialization of health means na important tool for the enforcement of the right to health, advantage that exceeds the limitations attributed do it, the investment in public policies is the most suitable way to concretize an eficiente public action, optimized and able to ensure the principles regarding the Unified Health System