O processo estrutural nas políticas públicas de saúde

• Autor(a) principal: Luque, Fernando da Silva
• Data de Publicação: 2020
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da Uninove
• Texto Completo: http://bibliotecatede.uninove.br/handle/tede/2386
• topic: direito à saúde; políticas públicas; processo estrutural; decisão estruturante; eficácia; concretização de direitos; right to health; public policy; structural process; structuring decision; efficiency; realization of rights; CIENCIAS SOCIAIS APLICADAS::DIREITO

This research will present the structural process in public health policies, starting with the Federal Constitution of 1988, which lists health within the list of social rights, attending to one of the aspects of human life, understood as physical well-being and the psychic, protecting the right to life. The study will not have the power to offer an answer to this question, which has been insoluble for generations. In order to ensure and enforce fundamental rights that, when demanded, become part of structural disputes, this study will propose to increase the structural process and the structuring decision as an appropriate tool for the judicial protection of claims with complex and multiple characteristics. The classic civil process, which previously was concerned only with individual or collective demands, is inadequate and deficient when faced with public values that consider structural reform in a private or public entity. In this perspective, a different treatment from traditional treatment and a new way of looking at civil proceedings, the way of judging and the figure of the judge under the ethical point of view are fundamental. A sentence expressed with a formal participation limited to the legitimate procedural and a rigid / static process, in the classic molds of our Judiciary, is an inadequate and flawed model in view of the current demands, arising from the very development of society and positivization of rights. Because of these implications, the bipolarized pattern, whether collective or individual, must be reconsidered and discussed. The structural process with its specific contours of mediation, flexibility and cooperation seems to us to be the best option, because, in addition to improving jurisdictional activity, it can provide an interactive process, with gradual, transparent, expanded and functional participation, with a proactive stance of parties in the search for a broad solution of the demand. For this to happen, it is necessary that the agents involved change their own posture and seek new meanings for the traditional concepts, the knowledge phases, the execution phase, the principles of separation of powers, the cause of asking and asking, for example contradictory, congruence and demand, stabilization of demand, res judicata and deadlines and means of proof. In view of the variety of facts and the now widely recognized impact of the judicial decision that increasingly affects society, all of this needs to be revised based on a more creative and flexible way of dealing with disputes, which enables true contact with the truth. Real and the search for the concrete solution of the demand, beyond its singular character. This trend seems possible and even necessary. Despite some dangers and difficulties envisaged in their implementation, such as interference in bureaucratic structures and the unfolding of a lasting process, they do not face them and choose an easier and irresponsible way out. Although it is not a definitive answer to the subject or the solution of all problems, the structural process is an adequate way to materialize and initiate the debate on fundamental rights in structural disputes, especially the right to health.