Direito fundamental à saúde : judicialização, solidariedade federativa e direito de regresso

Abstract

The 1988’s Constitution of the Federative Republic of Brazil created a universal healthcare public system, integral and free, raising the right to health to the social fundamental right level, and dictating many commands for its promotion. Nevertheless, it can be verified, nowadays, that constitutional promise was not met in the manner outlined. The problems affected to the public healthcare in Brazil has taken even larger dimensions, the challenge of the administrators is huge, and it involves joint actions, just as the cooperative federalism proclaims, so that these problems mitigate. There are considerable discrepancies among the constitutional coverage and the sub constitutional legislation, and the real coverage of services offered by the Brazil’s Unified Public Health System (SUS). This balance’s imbalance and the consequent failures in achieving the right to health inevitably lead to the conflict between the individual and the State, hence the judicialization of this right. In this scenario, the solidarity among the federal entities on the implementation of the right to health assumes an extreme relevant role achieving the constitutional commands in articles 196 et seq. from the Constitution. However, the effects of this solidarity are not transparent in the currently legal scenario, considering that this solidarity does not take effect without limits and restrictions, and it is not operationalized as prescribed as general rule on Brazilian Civil Code. Thus, comprehend the dynamic of this solidarity is the central problem on which this study will be dedicated. Therefore, the methodology of content analysis was used, establishing categories of analysis directly related to the research and checking within of them their main characteristics. As a working hypothesis, it is stated that the current jurisprudence of the Brazilian Federal Supreme Court has ratified the understanding that the obligation of federal entities in the provision of health services is solidarity. However, the Court has innovated by deliberating the consequences of this solidarity in each concrete case, creating a new scenario, consequently, for the establishment of this solidarity, which will be designed throughout the legal experiences in compliance with the precedents, in addition to the duty of standardization of jurisprudence.