A tutela constitucional do direito fundamental à saúde e o acesso à cannabis medicinal.

Abstract

Historically people have used Cannabis sativa L. for various purposes, including as a medicine. After going through an intense prohibitionist movement, discussions emerged in Brazilian society about the legalization of the plant to ensure its access for therapeutic purposes. This work makes a brief analysis of the history of Cannabis sativa ’s cultivation and use and discusses the current Brazilian prohibitionist policy, subsequently explains the constitutional protection of the fundamental right to health as a legal basis for medicinal Cannabis, and finally investigates the current regulation of access to medicinal Cannabis, exposing perspectives regarding the substance legalization in Brazil. The general objective of this study is to analyze the need for the legalization of medicinal Cannabis in Brazil with the aim of guaranteeing the right to health, through the implementation of access to this herbal medicine. Regarding specific objectives, the monograph is dedicated to survey a historical literature raise about the cultivation and use of Cannabis sativa; in addition to study the constitutional protection of the fundamental right to health as a legal basis for the use of medicinal Cannabis ; as well as analyzing the access regulation to medicinal Cannabis and the feasibility of legalizing the substance in Brazil. The problem of the research lies in the difficulty in accessing treatment based on medicinal Cannabis faced by a portion of vulnerable patients who end up having their fundamental right to health curtailed due to the State's legislative omission. In the elaboration of this study, it was used the methodology of bibliographical research, using in-depth scientific and documentary techniques, while the approach is hypothetical deductive, besides being qualitative, exploratory and descriptive research. The result of the study demonstrates the urgent need to enact an appropriate and specialized legislation able to regulate the access to the medicinal use of the substance. It was concluded that the publication of a national legislation dedicated to legalizing the cultivation and production of the plant-derived medicines is essential to enable access to medicinal Cannabis for all its recipients, so that the constitutionally foreseen right to health is guaranteed.