Atuação paradoxal do Poder Judiciário e perspectivas macroinstitucionais para conformação eficiente do direito à saúde.

Abstract

The judicialization of health is a much-debated phenomenon in Brazil, but the discussions are focused, above all, on the limits of judicial action, making it a mistake to treat a matter so relevant to the State, taking into account only one of its Powers. This research seeks to configure judicial action in health matters, especially in cases of drug supply, such as a paradox, which generates tensions and inequalities and, therefore, to propose legal perspectives to enable the efficiency of public health services, inserting in the study the Executive, Legislative and the Audit Courts, in a macro-institutional dimension, considering the functioning of the State and its institutions. The method used in the investigation is the hypothetical-deductive, with the elaboration of a conjecture - a reasonable response and research problem, which was later tested by means of jurisprudential and legislative, with simple statistical treatment and by grouping components. It is concluded that the performance of the Judiciary is paradoxical as in which it obliges the State to supply drugs not foreseen in the official listing of the Single System of Health - SUS, and, disregards the objective parameters for this type of demand, elaborated by the National Council of Justice - CNJ and National Health Forum. They are indicated as macro-institutional perspectives for the effective realization of the right to health, to circumvent and democratize access to public services, the management, the control of adequacy by the Courts of Accounts and the limitation of the deductions with health expenses in income tax.