Judicialização da saúde para o acesso a medicamentos: aplicação da teoria da integridade de Dworkin na análise da argumentação jurídica de decisões de primeira instância no ano de 2017 em Juiz de Fora, MG.

Abstract

Judicialization of health for access to medicines: application of Dworkin's theory of integrity in the analysis of the legal argumentation of first instance decisions in the year 2017 in Juiz de Fora, MG Access to health services is a social right enshrined in the Brazilian Constitution and the State has the duty to offer these services in universal coverage. However, when there is a gap in their provision, people can turn to the Judiciary to ensure their rights. It happens that an increase of the judicial demands with its deferred requests and the restrictive maintenance of public budgets dedicated to the health generates a frame of tension between the executive and judicial power that demands analysis and discussions on the subject. This paper seeks to elucidate the argumentative basis of the Judiciary in the granting of requests for medicines within SUS under the logic of law as integrity, defended by Ronald Dworkin. The objective of this study was to analyze the arguments used for the trial of requests for medicines against public entities in first instance judicial decisions in the year 2017 in the municipality of Juiz de Fora, MG. Data from the institutional site of the Tribunal de Justiça de Minas Gerais (TJMG) were used with the key to the search for judgments: "medicines" in the year 2017. The data were delimited from sentences of first instance of the municipality of Juiz de Fora MG in a total of one hundred and thirty three. The qualitative analysis of the sentences was divided into four argumentative groups: normative basis, jurisprudential authority arguments, doctrinal authority arguments and other arguments raised by the judge. For the discussion, the current legislation was analyzed, as well as other scientific works and literature that dealt with the subject, according to the bibliographical reference. As a result, the main normative bases that supported the approval of requests were articles 196, article 1, item III and article 5 caput and paragraph 1 of the CRFB/1988. The principles mentioned were proportionality, reasonableness, isonomy and organizational principles and guidelines of the Unified Health System. The State arguments were based on the financial / budgetary deficiency of the State, the existence of other treatments as care protocols and the absence of proof of the negative of service. The study demonstrated the need for a greater interface between judicial interference and the context of reality in which it operates in a more individualized and timely manner, considering Dworkin 's theory of integrity.