Judicialização no âmbito do SUS: avaliação da garantia de direitos individuais pela via do Poder Judiciário em Maracanaú-CE

Abstract

This study aims to assess the judicialization of health care within the Unified Health System (SUS), with regard to the guarantee of individual rights to the detriment of collective rights, taking into account local peculiarities. The analytical effort was aimed at understanding the phenomenon of the judicialization of health care; the conception of health care as a fundamental right; the relationship between the fundamental right to health care and the Judiciary; the relationship between the financing of the SUS and the tax system in force in Brazil; the profile of judicial litigants in accessing the right to health care, especially the profile of these litigants at the local level. The following fundamental concepts stand out as fundamental concepts to guide the research: the right to health care, SUS, the Brazilian tax matrix and judicialization. The concepts were developed based on studies by Alexandre de Almeida Gross, Konrad Hesse and Norberto Bobbio, among other authors who supported this research. The research site was the municipality of Maracanaú, a city located in the metropolitan region of Fortaleza. Although the research is the result of work developed within the scope of the Professional Master's Degree in Public Policy Evaluation (MAPP) at the Federal University of Ceará (UFC), the In-Depth Evaluation paradigm, Léa Rodrigues (2008), cannot be used in the present research, given practical limitations, such as the short time and health complications. Thus, the valuable field research, which allows greater proximity to the actors of the Public Policy studied, was compromised. The option, therefore, was to develop an exploratory, investigative research, based on documentary, legislative and doctrinal collections. In order to provide greater familiarity with the problem of the judicialization of health in Maracanaú, in 2023, an exploratory documentary research was carried out in the database of the Court of Justice of the State of Ceará (TJ-CE), comparing them with the data contained in the Attorney General's Office of the Municipality of Maracanaú (PGMM). This documentary research provided prior knowledge of how the phenomenon of judicialization in Maracanaú from 2021 to 2023. This period is justified by the collection of recent temporal data and the acquisition, in 2021, of a process management system facilitating the collection of information. Specifically, we identified that the phenomenon of judicialization in Maracanaú essentially involves the low-income population, sponsored by the Public Defender's Office of the State of Ceará (DPCE). Another aspect that remained evident was that more than half of the legal demands concern enteral feeding and disposable diapers, basic items of primary health care, which could easily be made available through Programs and Projects for this purpose. Due to the lack of planning and strategies that address this demand, millions of Reais are spent annually on judicialization, certainly reallocating resources intended for other Public Policies, even within the health area. Emergency auctions held to comply with preliminary injunctions have a much higher cost for the public entity. Aware of the urgency and the implications of non-compliance with injunctions, companies charge prices that are outside the market. Judges, in turn, imbued with a sense of social justice and without adequate technical advice, end up “granting everything to everyone”, without taking into account the costs and effectiveness of the asset or right requested. The need to preserve individual rights, especially the right to life and health, is fundamental. However, essentially because we live in a Democratic State of Law, individual rights cannot prevail without measures, to the detriment of collective rights.