Os requisitos do tema 106 do Superior Tribunal de Justiça em face dos princípios do Sistema Único de Saúde

Abstract

This paper analyzes the problem of health’s current judicialization situation, emphasizing the parallel between the existence of requirements for the granting of medicines not present in the Sistema Único de Saúde's official lists and the principles of Universality and Integrality. Therefore, a study on the Right to Health is presented, a fundamental right based mainly on article 196 of the Brazilian's Constitution, followed by a brief historical analysis of health's judicialization in the Brazilian higher courts after the 88's Constitution, using repercussions cases of great relevance to the public health scenario at the time. With this particular historical analysis, we reach Recurso Especial nº 1,657,156-RJ (2017 / 0025629-7), which after its judgment became known as Superior Tribunal de Justiça's Theme 6, which specifically addresses requirements for the granting of drugs not included in SUS's lists. Thus, the three requirements are examined (medical report, hyposufficiency and drug registration in ANVISA) and the possible clash between these requirements with some of the basic principles of SUS. Regarding the methodology, bibliographic research was executed with the collection of data and information presents in books, scientific articles, graduation papers, master's dissertations, doctoral theses and official websites such as the Ministério da Saúde, the Superior Tribunal de Justiça and the Supremo Tribunal Federal.