DIREITO À SAÚDE E JUDICIALIZAÇÃO: uma análise da atuação do Conselho Nacional de Justiça no aprimoramento da prestação jurisdicional nas demandas de saúde

Abstract

The right to health insertion s in the 1988 Federal Constitution, in the Constitutional essay, meant a great advance from the social point of view because, as will be seen throughout the work, which was developed taking into account the theories of John Rawls and Norman Daniels, health is one of the major factors that influences the opportunities that individuals have over their lives. However, the State has been facing problems in actualizing the right to health, since because of their promotion depend on government actions, and therefore, on the expenditure of resources, more and more managers have made use of the idea of Budget Possibility to justify the absence or insufficiency of public policies. Thus, in a context where the effectiveness of health rights is subjected to the reservation of the State's financial capabilities and, in addition, the high degree of abstraction and complexity for actualizing this right, it has spread a phenomenon that became known as legalization of health, which means the transfer of decisions on public health policies for the judiciary. The judges have faced great difficulties in analyzing demands involving the right to health, considering the abstraction and complexity of this right, turning it necessary the creation of clearer criteria, that could allow the judiciary to act in a balanced way, on the one hand in relation to fulfilling its constitutional mission of protecting the fundamental rights and on the other, as an Institution attentive to the economic constraints of the State and the harmonic separation of powers. The Conselho Nacional de Justiça (National Justice Council) intends to fill the role of protagonist of the necessary debate that needs to be caught around the legalization of health. Therefore, since 2010, it has been conducted a judicial public policy for the improvement of judicial services in health demands by the creation of the National Judicial Forum for Health, the main objective of the study was to evaluate the effectiveness of this judicial policy conducted by the CNJ in the legalization of health field, notably in the state of Maranhão.