The courts and the delivery of medicines by unified health system in Brazil: Recent developments in a difficult relationship between judges and policy-makers

Abstract

The aim of this study is to examine the dynamics in the relationship between the Legislative and the Judiciary in the implementation of the fun-damental right to healthcare in Brazil, based on a documental and bibliogra-phical analysis of lawsuits aimed at obtaining drugs not incorporated by the Unified Health System. The enshrinement by the Brazilian Constitution of 1988 of the right to healthcare as a duty of the State and a right of all, led to the modification of the performance of judges. From the position of self-restraint of the Judiciary on the subject, there was a growing intervention in public policies related to health. The Judiciary itself, from the Federal Supre-me Court (public hearing) and the National Council of Justice (recommen-dations and resolutions), began to dictate guidelines aimed at rationalizing the performance of the judges. Nonetheless, the Legislative also triggered a reaction to the advancements of the Judiciary, through the editing of Law 12.401/2011 and the emphasis on the consensual solutions enshrined in the Code of Civil Proceedings of 2015 and Law 13.140/2015. Recent de-cisions issued by the Superior Court of Justice and the Federal Supreme Court point to the inflection in the position of the Judiciary. In this sense, it is necessary to emphasize the importance of recognizing the institutional limits for the actions of the Judiciary in the control of public policies related to health as well as the establishment of institutional dialogue between the Judiciary and the Administration to overcome mutual misunderstandings and incomprehension.