Political, philosophical and economic foundations of the judicialisation of health in Brazil

Abstract

Although the right to health is a constitutionally enshrined fundamental right in Brazil, its effectiveness has led to numerous problems due to the economic scarcity that this right entails. In this context, various claims are brought before the courts in order to make the right to health effective. Therefore, this article discusses the lack of objective decision-making parameters in the Brazilian judiciary, which serve as political and ethical-philosophical foundations to support judicialisation, enabling an assessment of priority groups, diseases that deserve early care, the patient's economic condition and budgetary viability, to conclude acceptance or denial of the request. The lack of these parameters allows the judiciary to make arbitrary, subjective decisions that are sometimes devoid of objective budgetary rationality, thus creating a deficit in the public health budget and, consequently, creating obstacles for the Unified Health System to manage available resources and implement public policies inherent to health. The article analyses how judicialisation in Brazil has contributed to the reduction of universality, which is an intrinsic characteristic of the right to health, due to the fact that judicialisation benefits a minority of individuals, at exorbitant budgetary costs, to the detriment of the majority of the population, who run the risk of seeing their right to health not guaranteed, due to a poor distribution of public resources carried out by judicialisation, which consequently results in unconstitutionality.