O controle judicial de políticas públicas de saúde: necessidade de preservação do erário em face de decisões judicias inconsequentes

Abstract

The recognition of the normative force of constitutional norms has been expanding considerably the field of constitutional jurisdiction, particularly with regard to the possibility of controlling the fulfillment of social rights, which imprint prestacional's obligations to the State. In this context, it is necessary to establish legitimate creteriea to judicial power on controlling public policies, which occurs through the application of the principle of proportionality in cases of concrete demonstration of the failure of the policy drawn up by the Government. The Supreme Court expressed this understanding in ADPF 45/04. In the field of realization of social rights, it emphasizes the role played by the right to health. The main public health policy is the National Health System. Such public policy, despite existing and relatively effective, creates numerous distortions in the plane of reality that violates consubstanciador minimum core of the right to health in specific cases. According to the superior courts, some examples of such violations are: the non predictive of essential drugs to certain health treatments, the absence of adequate ICU (intensive care unit) beds in certain areas of the country and the non purchase therapy equipment essential for the treatment of certain diseases. Given the consolidation of this understanding in the superior courts, numerous decisions are handed down in the case of the realization of the right to health, generating sharp impact on the public budget. It is known that the theory of 'possible reserves' can not be considered as a serious argument, in the face of the Brazilian budget model (budget of authorization) which provides public claims without any specific destination. However, there are harmful effects of the realization of the right to health, which consist in the undue favoritism of major economic groups by immediate fulfillment of judicial decisions, without any prior discussion of prices paid by the state. In this context, and given that the right to preservation of the Treasury is also a fundamental right of citizens, it is a duty of the judge to integrate to the judicial process individuals interested in providing goods and services to the state so it can be realized a proper discussion of the values offered, according to the paradigm of due process, and as form to compose appropriately the interests of all involved in the dispute and render a decision substantially fair.