Reflexos da judicialização da saúde no orçamento público em observância aos direitos e garantias fundamentais

Abstract

The objective of this study is to analyze the role of the Judiciary in the implementation of the fundamental right to health, especially in the population's access to medicines and its effect on the public budget. In this way a historical contextualization is made on the origin and evolution of the fundamental rights and guarantees, ranging from its jusnaturalist view to its positivation by the constituents, focusing on the social right to health, classified as second generation / dimension by the doctrine. After the positive conception of the Federal Constitution of 1988, it shows the emergence of individual and collective rights and guarantees, basically corresponding to civil rights and procedural guarantees. These rights have the clear function of protecting citizens against state arbitrariness (limitation of power). The most relevant points of the right to health in the Federal Constitution of 1988 and the provisions of Law No. 8,080 / 90, which instituted the main public health policy, the Unified Health System (SUS), are also studied. Health is everyone's right and duty of the State, which has been a refrain has been sung and decanted in guaranteeing the realization of the right to health. An approach is taken on the emergence of public policies through demonstrations of concepts, their succinct definition of government actions, and which indicators affect the priority of their creations by the executive power, noting the power of influence over choice, groups. In view of the policies, the National Policy on Medicines and its guidelines are highlighted, highlighting Pharmaceutical Assistance in a reorientation and definition of competencies of federal entities (Union, States, Municipalities and Federal District). It demonstrates the importance of the public budget as a planning tool that mirrors political decisions, establishing priority actions to meet social demands. It analyzes the principles of separation of powers, maximum effectiveness, theories of reserve of the possible and the minimum existential, which are essential for making public health decisions and the effects of these decisions on the public budget.