SILVA, A. G. M.; http://lattes.cnpq.br/5920948716277234; SILVA, André Gustavo Medeiros.
Résumé:
Bearing in mind that the supply of high-cost medicines directly impacts society, the
dilemma arises as to which interest should prevail: that of the person who needs – to
ensure their right to life – the treatment requested in court or the community interest
of society. in having the right to universal and equal public health guaranteed.
Therefore, the present study deals with the legal-social impact of providing
Zolgensma to patients with Spinal Muscular Atrophy in light of the reserve of the
possible and existential minimum, using, for this purpose, the jurisprudence of the
STF and STJ. To achieve this, it was necessary to systematize the social right to
health in the Brazilian legal system, analyze the social impact of high-cost medicines
(for example, Zolgensma Gene Therapy) and expose the legal consequences of
providing high-cost medicines, taking into account consideration of the principles of
the reserve of the possible and the existential minimum. Bibliographical and
documentary research was then carried out, using a qualitative approach, and the
attributes of this study were categorized as exploratory and descriptive in nature. In
view of this, it was found that the State does not always effectively guarantee the
physical and mental well-being of people who need drug treatment, a right of
constitutional status, since it is, for many, a prerogative for health and a dignified life.
When this happens, the Judiciary's task is to guarantee the lives of those who need
their protection. Therefore, we consider it essential that, once the requirements for
the granting of high-value medicine have been duly verified, Zolgensma is provided –
as well as other medicines essential to the life of the ward –, based on a joint
analysis of the aforementioned principles. In general, the jurisprudence of the
Superior Courts has not departed from the need to guarantee minimum conditions for
the dignified existence of each person, with increasing respect for the foundation of
the Federative Republic of Brazil, that is, the dignity of the human person. Therefore,
it was possible to conclude that, despite entailing legal consequences due to its high
value, the supply of Zolgensma Gene Therapy cannot be denied to those who need it
and do not have the financial means to purchase it. However, according to decisions
and votes transcribed in this monograph, there are numerous cases in which the
State's interest overrode private interest, this is because individual interest in the
legal claim for a medicine may not always prevail in the face of the community's need
for basic health.
