Ativismo judicial e a judicialização do direito á saúde: parâmetros para intervenção judicial nas políticas públicas de saúde.

Abstract

The today‟s Judiciary , as well as power in recent years has acted as protagonist in the Brazilian institutional life, due to the big problem of constitutional dogmatic and modern constitutionalism: the phenomenon called syndrome ineffectiveness of constitutional norms. Therefore, the judiciary has been raised to implement and give effect to the constitutional rules of fundamental right content, in particular social rights prestacional size, so those standards do not become inconsequential constitutional promises. Specifically the social health right, the Brazilian state lives a political chaos and total mismanagement, with a lack of medicines, medical and health professionals, efficient and appropriate treatments, lack of beds, among others. All of these are objections to the realization of the constitutional right to health enjoyed by the citizens, and the right to life itself. In this environment, in the case of a constitutionally guaranteed right, the judiciary is caused to intervene by determinations to the Government to provide health benefits in a range of situations in order to fulfill the constitutional promise to preserve health, life and dignity of individuals. These issues have raised the debate on the limits of judicial decisions intervening in public health policies. And so, the question is: what are the parameters to be observed by judges when deciding lawsuits that require the condemnation of the government to provide health benefits materials? As a hypothesis for questioning, we have the dogmatic construction parameters so that the judges act on health demands will provide legal certainty to all and full legitimacy judgments. Thus, this research aims to verify the legitimacy of judicial intervention in the decisions that determine the Government to providing health benefits, as well as examine the doctrinal and jurisprudential construction of the parameters to be observed by the courts and judges in the implementation of the right to Cheers. The study adopts the approach of the deductive method, the methodology follows the qualitative model, and as a research technique used to literature, through legislative, doctrinal and jurisprudential analysis. As a result, it follows that the court decision determining the Government the supply of health services must respect and take as parameters: the dignity of the human person; the principles of inafastabilidade jurisdiction, subsidiarity and proportionality; the limits established by the Supreme Court in the trial of STA nº 175