ARAUJO, J.M.; http://lattes.cnpq.br/1325334678715991; ARAUJO, Jéssica Martins.
Résumé:
This paper discusses issues related to the right to health in Brazil and its effectivation
throught judicial decisions which require the State to pay medical expenses,
considering what is known as judicial activism. In this line of reasoning, with the
purpose to clarify the limits and the performance parameters of the Judiciary in
disputes which relate to right to health, definitions related to the separation of
powers, the theory of the reserve for contingencies, the existential minimum and the
constitutional principles have been presented. This study was carried out based on
the research technique of indirect documentation, because it predominantly covers
bibliographical and documental research. Besides the legal and formal basis
corresponding to the Federal Constitution of 1988, the Law no. 8080/1990 and the
Complementary Law no. 141/2012, concrete cases judged by courts and conceptions
of teachers and scholars have been utilized. Although there exists a vast amount of
decisions derived from courts which privilege the costing of medical treatments and
surgical procedures by the State, there are, in contrast, many elements that could
justify limitations considering analysis and judgement from some individual demands,
to be mentioned the lack of scientific evidences about the efficiency of the required
treatment, along with the budget constraint of the federative entities. It was also
found that the intended treatments and medications mostly imply a significant
financial onus to the state apparatus. Therefore, in order not to jeopardize the
provision of health services to the community, the aforementioned judicial decisions
must be based on the Principle of Reasonableness.
