Exhaustive list vs. theme 106 STJ: analysis of contradictions in judicial parameters involving the judicialization of health Esther Dantas de Sá Paiva Gurjão, Rosa Maria Ferreiro Pinto

Abstract

The study aimed to analyze contradictions in parameters adopted by the Judiciary regarding the protection of the public health system in comparison to the supplementary health system, in light of recent judgments by the Superior Court of Justice, issued in the proceedings of EREsp No. 1886929 and 1889704, regarding the exhaustiveness, as a rule, of the list of procedures of the National Supplementary Health Agency (ANS). The requirements contained in the binding decision issued in the judgment of REsp No. 1657156/RJ (Topic 106) were also analyzed, which defined the obligation of the government to provide medications not incorporated into the Unified Health System (SUS) through judicial means, upon satisfaction of certain requirements. To carry out the work, indirect documentary research was used as a collection method, through consultation of bibliographic and documentary collections, and qualitative review as a method of analysis, aiming at a better understanding of the contradictions existing in judicial decisions and the consequences of this scenario for the vulnerability of the SUS. The research found that judicial parameters for sentencing the SUS were more flexible than those adopted in relation to supplementary health. The evidence obtained points to the need for judicial analyses that dedicate greater consideration to the criteria chosen by the legislator for the production of public health policies, as a way of bringing greater equity to the judicial parameters applied in relation to the two systems.