Direito à saúde e ativismo judicial: uma análise do princípio da razoabilidade nas lides que versem sobre a efetividade do direito à saúde

Abstract

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.