A responsabilidade do Estado em fornecer medicamentos de alto custo.

Abstract

This article addressed the issue of state responsibility in providing high-cost drugs, considering the current context of health judicialization in the country. To this end, an approach with support in post-positive theory was made, especially in Dworkin (2002) and Alexy (2015). Aiming at understanding how the issue has been approached by doctrine, law and jurisprudence, literature review, data survey by the Federal Supreme Court and the Superior Court of Justice (BRAZIL) and analysis of current normative provisions were carried out. It was noticed that, regarding the doctrine, there are not many specific articles about high cost drugs, and it is more common to find literature that studies the phenomenon of health judicialization as a whole. Concerning the jurisprudential analysis, Extraordinary Appeal nº. 566.471 (BRAZIL, 2007) was highlighted, in which the general repercussion on the discussion on the obligation, or not, of the State to provide high cost medicine to the bearer of a serious illness that does not have financial conditions to purchase it was acknowledged. However, the thesis has not yet been fixed in the appeal. The analysis of the laws, in turn, allowed the verification of the normative insufficiency on the subject. Therefore, criteria were developed to enable impartiality and legal security in judicial demands for high-cost drugs in relation to the State. In this sense, a proposal was formulated aiming at satisfying the essential core of the right to health, the reserve of the possible and the principle of equality. It was, therefore, a diagnostic-propositive research, conducted under the deductive methodology, with moments, however, of induction characterized by the analysis of the relevant judicial decisions.