Obstáculos processuais à legitimidade passiva na judicialização da saúde pública à luz dos Temas 793 e 1234 do STF e do IAC 14 do STJ

Abstract

This paper aims to analyze the judicialization of public health from a procedural point of view, since the procedure is the instrument for obtaining the relief sought. Based on Theme 793 of the STF, Incident of Assumption of Jurisdiction 14 of the STJ, and Theme 1234 of the STF, which contradict each other and are silent about important topics, it explores the composition of the passive pole in lawsuits for access to public health, adopting the standing to be sued as the central topic of controversy. The aim is, using exploratory research, to identify procedural obstacles and propose appropriate solutions for procedural progress and development, to standardize legal action without, however, neglecting the rules governing civil procedure itself. In this sense, the paper analyzes the conflict between procedural law and substantive law, the nature of joint litigation, the timing and procedure for adjusting the passive pole, the right to compensation, and the intervention of third parties in the context of the judicialization of public health. Based on the inductive method and empirical documentary research, the obstacles listed are confronted with the doctrine and the binding theses established, in order to offer solutions that operationalize the composition of the passive pole, valuing procedural technique.