O direto fundamental á saúde e a reserva do possível: uma análise da atuação jurisdicional no ordenamento jurídico Brasileiro.

Abstract

Health as assumption of the principle of human dignity must be provided efficiently and equitably throughout the population. This was the premise enshrined in the Constitution of 1988, imposing therefore the duty of the government to develop public health policies. It turns out that the obligation of the State is not being performed adequately, since often courts have been faced with the necessity of realizing this right. Therefore, this paper proposes to examine the fundamental character of the right to health and their implementation by the judiciary, from the definition of the legal and financial state by the theory of reserve for contingencies, which has been used by the public as ground to prevent exercise jurisdiction on the demands associated with public health. Also, examine the state duty to perform satisfactorily, positive behaviors that can offer citizens a minimum existential health analyzing therefore formalities intrinsic to the media request court proved this right when the restriction of this fundamental guarantee, and also examine the limits and prerogatives that the judiciary has to judge the actions linked to health. For this, we used the deductive method of approach, since the study was based on a broader, such as research the origin of fundamental rights and core analysis of the general principles governing the matter in order to establish jurisdictional solutions to concrete cases involving the right to health. As a method of procedure was used exegetical and legal, from the investigation of the fundamental right to health, considering the legal limits of its application. In turn, we used the literature with analysis of the legislation, doctrine and jurisprudence related to the topic. Thus, considering the fundamental aspect principle that the right to health holds, combining that this assumption is unfolding right to life itself, along with the inertia of the state in the provision of decent health policies with the current reality, it is noticed the most feasible and fair is the ability of the judiciary to intervene in the implementation of public health, analyzing the specific case and taking reasonable steps and reasonable for the citizen who is helpless can get plausible solution with the jurisdiction.