Desjudicialização do direito à saúde: a experiência do Estado do Ceará na adoção de estratégias judiciais e extrajudiciais.

Abstract

The judicialization of health has become institutionalized and is now one more form of access to the Unified Health System (SUS). However, the implementation of fundamental rights cannot be given priority in this way. The understanding of the double nature of the right to health strengthens the understanding of its objective character, which expends objective duties to the Public Power, and efforts should be concentrated on improving its voluntary service, focusing on the necessary procedures and organizational structures. They are ways to implement the right to health by rationalizing and reducing its judicialization, respectively, creating more formal decision-making parameters and deepening the process of interaction among the agents of the legal, administrative and health system through institutional dialogue mechanisms. With a view to further deepening the mobilization measures by disjudicialization, considering the perspective of the various actors involved, the present research turns to the study of the judicial and extrajudicial strategies used to contain the excessive judicialization of health, with emphasis on the experiences developed in the State of Ceará, sustaining the disjudicialization as an alternative to judicial activism. Based on these considerations, the general objective of the present study is to analyze the panorama of the judicialization of health in the State of Ceará and to understand how the establishment of measures of disjudicialization can provide satisfactory solutions to this problem, contributing to a more public health policy effective and easily accessible. For this, a methodological strategy was developed using quantitative and qualitative techniques of production, data collection and analysis. The research was exploratory and developed based on the jurisprudential analysis in the scope of the Court of Justice of the State of Ceará, with the purpose of constructing a profile of public health litigation, seeking to categorize them through variables such as: author, defendant, health defendant, existence of the anticipation of guardianship, argumentation of the judicial decision, collective and individual actions. In addition to collecting these data, the study also aimed to analyze the judicial health policy and some experiences of the realization of the right to health in the State of Ceará regarding the institutional arrangements developed for the expansion of the right to health. In addition to the bibliographic research, the Health Department of the State of Ceará (SESA), the Health Defense Center (NUDESA) and the Technical Support Center for the Judiciary (NATJUS-CE) were visited to collect data from the institutions. Tables were used for a better analysis and systematization of the results. Among the results found, the predominance of individual and item litigation in the public health policy is more pronounced in the State of Ceará than in the judiciary, a greater probability of deferral of demands and a high rate of requests for ICU beds. As for the strategies studied, they are effective in qualifying the judiciary to make decisions more in line with the public health policy, as well as the success of the extra-judicial resolution of the demands, making it necessary, however, to strengthen human resources in both initiatives, which are in the expansion phase.