Razões pragmáticas para o controle procedimental dos litígios de saúde: em busca do acesso igualitário

Abstract

Increasing health care litigation for drugs, mainly via individual enforcement in Brazil, gives little importance to the decision-making process of health authorities and sets priorities for health care allocation in place of health authorities and their distributive policies. Based on the context and their immediate and systemic consequences, it was verified, by empirical data, that the judicial claims for drugs not included in health policies or for off-protocols use did not produce desirable results for a universal and equal health system, regarding the financial and administrative impacts, the medicines granted and the litigants benefited. The initial aim of this thesis is to highlight this scenario and to address an alternative judicial interpretation of the right to health in order to gradually reduce health care litigation and the risks to equity in the distribution of scarce resources. Legal pragmatism is chosen due to the importance it attaches to facts and consequences of interpreting and applying the law, which imposes a different interpretation by Brazilian courts, committed to practical results that promote equal and universal access to health care system. For this, it is argued that the procedural enforcement based on the accountability for reasonableness, developed by Norman Daniels and James Sabin, is a good tool for the pragmatist judge, as it suggests that in the absence of consensus in health priorities setting, resources should be distributed according to a fair and publicly acceptable process that guarantees the legitimacy of the decision, thus emphasizing the needs of the population as a whole. It is concluded that the creation of CONITEC, theNational Council for Incorporation of Technologies in the National Health System (SUS), an institution responsible for assessing health technologies that follows an administrative procedure open to public participation, makes procedural enforcement a more justifiable pragmatic strategy.To test this suggestion, an empirical analyses demonstrates the National Council s performance and its results.