Resumo

LEAO, Simone Letícia Severo e Sousa Dabés. ASPECTS REGARDING THE JUDICIALIZATION OF HEALTH CARE: A STUDY ABOUT THE PERFORMANCE OF THE 8TH CIVIL COURT OF THE COURT OF JUSTICE OF THE STATE OF MINAS GERAIS - TJMG. Revista Internacional CONSINTER de Direito [online]. 2020, n.10, pp.181-202.  Epub 30-Jun-2020. ISSN 2183-6396.  https://doi.org/10.19135/revista.consinter.00010.08.

This article has objectified to analyse questions related to the judicialization of health care in Brazil, especially related to the performance of the 8th civil court of the Court of Justice of the State of Minas Gerais. A qualitative, exploratory research was carried out, using bibliographic and documental research to collect data. Health care belongs to one of the social rights guaranteed under the Article 6 from the Chapter II (‘Social Rights’) included in the Title II (‘Fundamental Rights’) found in the Federal Constitution of 1988. Thus, according to the chapter II, article 196 from the Federal Constitution of 1988, health care represents a right of any citizen and an obligation of the state. The Article 2 from the Law Number 8.080 of 1990 stresses, in turn, that health care is a fundamental right of every human and that the state must provide all the necessary conditions for enabling this right to everyone, which was highlighted in the researched theoretical framework - mainly SOUSA, 2015 e ANDRADE, 2015. Therefore, it is evident that health care is a fundamental social right that requires positive action from the state in order to secure a dignified life for all citizens. It is with Brazil’s precarious public health system, combined with the insufficient number of medications and/or medical treatment and surgical procedures, as well as the lack of resources or noncompliance with public policies, that the so-called judicialization of health care has emerged, as citizens with no financial resources must rely on the judiciary in order to secure their rights. It is valuable to point out that falling back on the principle of the reserve of the possibilities clause to explain the financial limitation and supposed loss of the state does not justify not providing access to health services. Indeed, there is a long way to go in the process of improving the quality of health care in Brazil. Nevertheless, as long as the right to health in Brazil is concerned, it is necessary to find the balance between the most basic social rights found in the Federal Constitution and the alleged constitutional budget limitations. Therefore, it is certainly reasonable for us to set out criteria and parameters for its concession.

Palavras-chave : Judicialization of health care; Reserve of the possibilities clause; Inapplicability; Judicial decisions; Jurisprudence of the Court of Justice of the State of Minas Gerais..

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