A teia do direito à saúde: entre o posto e o disposto.

Abstract

The 1988 Federal Constitution states health as a right of all and duty of the State. Nevertheless, it allows the performance of health services can be implemented by private health companies. This study aims to analyze Brazilian policy of comprehensive social protection in health regarding the Brazilian Constitution as the main pillar of health care, ruling the coexistence of public (SUS) and private health care structures, as a mixed system. The work is structured on four argumentative axes: the constitutional and legal framework in health care; the relationship between State, market and society in social protection models; the role of the public and private sectors in the health care provision and its links with English and American models; and the influence of the judiciary branch into the constitutional vision of the health rights. Primarily, it will be examined the constitutional environment in the discussions on the Health Reform Project in the National Constituent Assembly and its consequences for legislative production on health and on the notion of the right to health, ranging from social or consumer rights. As a theoretical framework, there is a review of literature about the welfare to address the types of social protection models, focusing on the ESPING-ANDERSEN s class mobilization theory (1991) to suggest that the Brazilian social protection model in health care is closer to the American liberal-welfare than the European social solidarity pact. Further, it seeks to trace elements that influenced the current conformation of public and private sectors in health care and the morphology and size of the health care insurance market. In addition, it analyzes the composition of health spending, compared to English and American paradigms. At the end, it will be discussed the political role that assumed the Judiciary in the current constitutional order, and from the decisions of the Brazilian Supreme Court (STF) and the Superior Court of Justice (STJ), to assess whether the model of social protection goes to the universal-redistributive or the liberal-welfare in the provision of health care services.