Acesso à justiça e a judicialização da saúde: efetividade ou acentuação da desigualdade material?

Abstract

In search to consecrate fundamental rights, the Federal Supreme Court has signed an understanding that obliges the State to pay for medicines and privilege the granting of individual demands. This scientific article aims to analyses the phenomenon of the judicialization of high-cost medicines with a view to verifying the consequences. It seeks to investigate whether the judiciary can guarantee universal and concrete access to the population in an egalitarian way. As a methodology, hypothetical- deductive analysis is used to understand the mechanisms adopted by the Ministry of Health in relation to the distribution of medicines, the criteria that have been implemented by the National Council of Justice and the difficulties to make the access to justice an effectively egalitarian right. Finally, as research results, it was possible to verify that the judicialization of health must meet objective criteria and must be advised by specialized structures that have expertise in the functioning of the SUS, for the Judiciary to be a subsidiary means for the realization of the right to health without accentuating social inequalities or compromising the functioning of public health policies.