A judicialização como meio de efetivação do Direito à saúde no Brasil.

Abstract

This paper discusses issues that are related to the right to health in the Brazilian legal system, with the main purpose of the study the possibility of using as a means of achieving judicialization of that right. It turns out that the problem is related to the criticisms about the use of this mechanism, which is based the theory of possible reservation and the principle of separation of powers. However, the Government uses the theory of possible reserve in a generic way, without observing the precepts of that. The type of research to be used in this work will be the indirect documentation, with a view to the use of bibliographic materials, case law and legal. The procedural method that will be used is the history, because it is necessary to the knowledge of how the emergence of the theme and your development. Will also be used the deductive method, since it will be analyzed the relationship of the judicialization of the right to health with the minimum existential principle and fundamental rights, especially human dignity and the right to life. The goal is to examine the possibility of the judicialization of health as a means of implementation of fundamental rights, analyzing and correlating with the various principles that are listed in the Magna Carta. The democratic State of law brought new guise to the legal system, since the State as a whole has become protagonist in implementation of fundamental rights, in particular social rights. Thus, the Judiciary exerts a major role in the implementation of fundamental rights, because this performance stems from the constitutional text itself. Thus, it is concluded that judicialization can be used as a means of operationalizing the right to health, not violating the recently possible without an allegation with precepts of this and the separation of powers, because the judge will use as criteria to proportionality, reasonableness and decisions handed down by the Supreme Court in this case, promoting the right to health, human dignity and the right to life.