A Judicialização da saúde sob a ótica do choque dos princípios da reserva do possível e do mínimo existencial

Abstract

The present study aims to address the phenomenon called judicialization of health from a theoretical-doctrinaire perspective, with a ponderation between the constitutional principles of the existential minimum and the resource limitation, the last one attributed to the public administration and the first to the citizen. In a synthetic approach, the judicialization of health was attributed to the fact that the actual obtaining of medicine treatment nowadays tends - and increasingly - to be conditioned to the protocol of lawsuits with this objective. Among the main reasons is the unavailability of the medicine prescribed in public distribution establishments, which may be motivated by several factors: lack of regulation, high cost, dubious efficacy, etc. The fundamental principle to the existential minimum is studied from its initial conception until the application in the Brazilian legal system, where it is demonstrated the importance of its effectiveness in a Democratic State of Law. The study will also analyze the validity of the institute that has restrained its applicability: the resource limitation. In this scenario, the judicial interpreter (judge) is confronted with situations in which the unrestricted guarantee of medicine treatment can result in a loss to the existential minimum of an entire collective, resulting from the sudden allocation of the public budget – originally destined to public health policies – for the enforcement of court orders. It should be noted that the resource limitation should not only be used as an argument for the generic denial of rights, as some argue, but rather to provide an effective distribution of the finite financial resources of the State.