Saúde mental: estabelecimento de critérios objetivos para sua judiciacialização

Abstract

In view of the fact that diagnoses related to mental disorders have grown dramatically across the globe, even before the pandemic of the new coronavirus, it is essential to discover how the Judiciary, when asked to vote about access to mental healthcare, should make their decisions, considering that the financial resources for the guarantee of the right to healthcare are limited. Looking at the identification of such reality, the present work aims to investigate objective parameters for the judicial decisions mentioned from the densification, in view of the peculiarities that involve mental illnesses, of the concept of health demands of first and second need elaborated by Duarte (2013), which classify health services based on their essentiality. To this end, Alexy's Theory of Fundamental Rights and Legal Argumentation (2001, 2008) and Rawls's Theory of Justice (2002) were adopted as theoretical references for this research, providing its dialogue with Brazilian and Latin American authors, in order to envision its application in the Brazilian and Latin American context. In addition to the aforementioned deductive research characterized by the application of theoretical precepts prior to the indicated object of study, inductive research was also developed through the jurisprudential analysis of the national courts, in particular the Court of Justice of Minas Gerais (TJMG), in order to verify the reality of the judicialization of mental healthcare and allowing the formulation of criteria for judicial decisions related to the issue. Therefore, the present investigation concluded that the qualification of the essentiality of mental health services can only be carried out based on the assessment of the severity with which it manifests itself in each patient, which severity is being measured objectively from instruments extracted from the medical- psychiatric consulted, which should guide, along with other elements of the judicial process, the decision of the magistrate.