Democracia Sanitária: O papel da participação na construção do conceito jurídico de saúde

Abstract

This dissertation is about the role of participation in building the constitutional concept of health. At first, it is presented the issue of participation in democracy theories, pointing out the legal consequences and political intention expected through the institutionalization of participatory arenas and the influence of this theoretical set in the consolidation of a participatory system in the Brazilian Constitution. It is shown that this broader movement to democratize public administration came to meet health theories that advocate participation in health as a necessary instrument to improve health and to identify the meaning of health. It is asserted that this theoretical context led the 1988 Constitution to incorporate an expanded concept of health and to discipline that the organization of the public system would be guided by the community participation, what supported the development of the health democracy idea, that is presented as a political orientation for building the meaning of health, which will be adopted to develop public policies to promote, protect and recover health. Based on this normative-constitutional, it is said that the legal concept of health has a democratic element, which links its meaning to a process of apprehension and harmonization of the multiple well-being conceptions gravitating in society. It is noted, however, that being health a fundamental right, there is a minimum amount of health that can be demanded independent of democratic deliberation. As a result, it follows that it cannot be reasonably claimed any legal interpretation that health becomes a concept devoid of democratic influence, as it is inappropriate to say that health rights does not have a minimum content independent of democratic expression. In this way, it is argued that health rights ensures that individual plans of physical, mental and social well-being are brought to the deliberation arenas, in order to harmonize and give rise to social pacts on how all individual plans will be maintained and conducted, without any of them being deleted, or subjugated to a single interest. Finally, it is shown that the limited interpretation of the participative principle and the persistent understanding of health as a biomedical concept restrict the reformist goals enshrined in the Constitution, decreasing the relevance and the potential of health participation forums