Judicialização da saúde: o fornecimento de medicamento e o tensionamento entre os poderes

Abstract

The research was titled “Judicialization of Health in Brazil: the Provision of Medicines and the Tension Between the Branches of Government” and included an in-depth analysis of the elements that justify the judicialization of health and the consequences of excessive demand of this kind. The central objective was to understand the main factors responsible for the increase in lawsuits related to the provision of medicines, while also analyzing the compatibility of this judicialization with the principle of separation of powers. Additionally, the study sought to discuss the need for dejudicialization of the issue, in light of the Brazilian legal-constitutional model, aiming at budgetary sustainability and administrative efficiency. The research problem was based on the attempt to reconcile health judicialization with the fundamental principles of the Constitution, which are essential for maintaining harmony between the Powers. The research methodology consisted of a bibliographic study, qualitative in nature, based on the analysis of scientific articles, legislation, doctrinal works, judicial precedents, case law from higher courts, and institutional guidelines—particularly Resolutions No. 107/2010, No. 238/2016, and No. 530/2023 of the National Justice Council. Regarding judicial rulings on the topic, the study highlighted precedents from the Supreme Federal Court in Extraordinary Appeals No. 566.471/RN, 657.718/MG, 855.178/SE, and 1.248.548/MG, as well as General Repercussion Themes 500 and 793, in which the Court established guidelines to direct judicial actions and restrain excessive decisions. Ultimately, the study concluded that the effective implementation of this fundamental right requires balance, planning, and respect for constitutional order to ensure both the fulfillment of individual needs and the preservation of the Unified Health System as a universal public policy.