Os precedentes judiciais no fornecimento de medicamentos de alto custo pelo Estado: o diálogo institucional como proposta de desjudicialização da saúde

Abstract

Precedents in the Brazilian legal system are analyzed, which are of great importance in the search for the uniformity of judicial decisions, especially in the context of the judicialization of health and the duty of the State to supply high-cost medicines, in order to avoid disparate decisions in similar cases. In this regard, the problem faced in the research refers to the excessive judicialization of health demands and the tradicional bipolar process, with the Judiciary being used as a means of effecting and accessing high-cost medicines, without the participation of other institutions for a dialogic and inter-institutional solution, with the aim of achieving the dejudicialization of the health right, favoring a democratic and participatory environment of all the competent institutions for the resolution of the structural problem, with the sharing of decision-making power. To this end, after the institutional dialogue and the proposition of a strategic plan under permanent jurisdiction, it is suggested the use of compliance within the scope of health law, so that the budgetary resources destined for the realization of the right to health are supervised for the real application of the public purpose, such as high-cost medications, hospitalizations in UTI beds and other extrajudicial strategies consistent with public health policy, favoring an extrajudicial macrosolution and constitucional fraternalism in the demands of the right to health in Brazil.