Direito à saúde e a pílula do câncer: os reflexos do confronto entre a Lei nº 13.269/2016 e os Enunciados nº 6 e nº 9 da I Jornada de Direito da Saúde do CNJ nas decisões dos tribunais de São Paulo e de Minas Gerais sobre a concessão da fosfoetanolamina no período entre 01/01/2014 a 13/06/2016

Abstract

The aim of this paper is to identify how the Law 13.269 / 2016 and the Statements No. 6 and 9 set out in the I Health Law Convention of the National Council of Justice (CNJ), which occurred in 2014, influenced court decisions on the phosphoethanolamine substance permit by the Courts of Justice of the states of São Paulo (TJSP) and Minas Gerais (TJMG). These observations are relevant because they address the right to health, a fundamental asset for the man, and discuss the controversy over the release of the experimental drug. Decisions obtained in 2014, 2015 and 2016 (until June 13) were analyzed so that the judgmental views could be addressed objectively. Using an empirical method, which means the collection of documentation thus allowing the survey and analysis of decisions, the arguments that supported the votes in the courts for approval and rejection of the delivery of cancer pill have been identified. A significant number of final judgments were observed in the TJSP as it was the place which held the focus of the problem. Henceforth, the main arguments converged to the non-issuing of the drug (out of seven hundred twelve decisions, a thousand and fifteen voted against it). In the TJMG, the predominantly addressed issues regarded both the jurisdiction and formal aspects such as the admissibility of the action. In the state of Minas Gerais, only one resolution dealt with the merits of the issue, opposing to the use of the substance. Despite the enactment of Law 13.269/2016, there was no impact concerning a significant change in the judges’ understanding during its term, still prevailing negative judgment. Accession to the CNJ Statements was therefore perceived, which claimed that the judicial protection should prevent the granting of neither experimental nor unregistered drugs in the National Health Surveillance Agency (ANVISA), since this obligation cannot be imposed on the State.