THE TRAGIC CHOICES AND THE STATE: : A SYSTEMIC ALTERNATIVE PERSPECTIVE FOR JUDICIALIZED HEALTH

• Autor(a) principal: LEITÃO, ANDRE STUDART
• Data de Publicação: 2024
• Outros Autores: Schilling Ferraz, Taís, Menezes Brunetta, Cíntia
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista Direitos Fundamentais e Democracia
• Texto Completo: https://revistaeletronicardfd.unibrasil.com.br/index.php/rdfd/article/view/2505

The complexity of the phenomenon of judicialization of health care leads the judge, constantly, to the stage of tragic choices. It is expected that he will decide in favor of the one who asks for the right, for whom the legal good is priceless, or in favor of the State, which, in order to provide social rights, needs to allocate or reallocate resources that are known to be finite. The article investigates, from a systemic perspective, the role of the Judiciary in actions on the right to health and health care, to evaluate the hypothesis that the atomized treatment of cases may be feeding back the judicialization. Adopting a critical-methodological approach, based on data and taking as a theoretical framework elements of the economic analysis of law, the theory of tragic choices and systemic thinking, the text identifies some consequences of the reactive form of judicial action in the treatment of actions on health and evaluates, based on the economic theory of the second best, a model of action that better honors the institutional capacity of the Judiciary in the pacification of controversies and that embraces the complexity involved in the implementation of the right to health. Finally, it proposes the more widespread use of structural demands as an alternative to obtain greater systemic and sustainable gains in judicial action. Key words: Right to health. Economic impacts of decisions. Judicialization. Institutional Capacity. Structural demands