The fundamental right to health and the blocking of public funds to guarantee the supply of medicines

Abstract

The issue of judicialization related to the non-supply of medicines has shown a recurring omission by the State, which originally does not provide some types of medicines, and even after a judicial determination, the state remains inert. This article aims to discuss the possibility or not of blocking public funds to guarantee the supply of medicines. Exploratory, bibliographic and documentary research is carried out,
based on the two themes with general repercussions, one in the STJ (theme 84) and the other in the STF (theme 289), until 12.06.2018, and the processes that gave rise to the themes, and the data collected are analyzed through the deductive and systemic methods. The research resulted in the identification that the Federation's refusal to provide medicines fostered the judicialization, raising the demands of this nature, and
the failure by the State, when convicted, culminated in positions in the intermediary courts, pacified in the higher courts. From this perspective, the positions of the Superior Court of Justice and the Federal Supreme Court will be evaluated, as to the legitimacy of the judicial determination of the blocking of public funds as a means of enforcing the prevailing law, as well as the discussion as to the legitimacy of power interference in the acts of the Public Administration. Finally, the limits of the discussion will be drawn up to define whether it is incumbent upon the Judiciary to impose on the Public Administration an obligation to give effect to the postulate of the dignity of the human
person, facing the arguments of respect for the reserve of the possible to the principle of separation of powers.