O estado brasileiro e o direito à saúde: uma análise sobre o dever estatal de prestar assistência à saúde

Abstract

It seeks to present the frequent discussions in the Brazilian Judiciary about the right to health and its reflexes in public policy at the national level. At the heart of the discussion is the evaluation of the impact of decisions that defer individual lawsuits on the right to health of society, which sees their projects depleted due to the redirection of resources to comply with judicial decisions handed down in specific cases. In order to arrive at this answer, an analysis was made, notably regarding the obligation (or not) of the State to respond to such individual lawsuits, or whether there would be possible limitations to the enjoyment of the right to health. To do so, initially, a conception of the concept of health, its connection with the fundamental right to life and the application of direct health to the Brazilian legal system was carried out. In a second moment, we sought to bring to the fore the way in which the right to health is exercised in Brazil, as well as the possible limitations to its enjoyment, such as the 'reserve of the possible' and the 'existential minimum'. Then, the health claims filed by the Brazilian Judiciary were evaluated, in order to observe the rationale that has been applied in the Courts, especially if the institutions that mitigate the enjoyment of the law are present. Finally, the present work is concluded with the possibility of weighing in the face of the principled struggle in the case, in which there is, on the one hand, the individual claim for health and, on the other, the social demand for programs related to the same right .