The indirect judicialization of health: a case study on the Experience of Cachoeiro de Itapemirim/ES/ A judicializacao indireta da saude: um estudo de caso sobre a experiencia de Cachoeiro de Itapemirim/ES.

Author:Lopes, Luciano Motta Nunes
Position:Estudio de caso
  1. Introduction

    The Brazilian federal constitution of 1988 gave the right to health the status of a "citizenship right", guided by values such as universality, equity and integrity. It became, then, a responsibility of the State, which must ensure "[...] social and economic policies of disease and other grievances' risk reduction as well as universal and equal access to actions and services for its promotion, protection and recuperation." [Article 196, Brazilian federal constitution (CF/88)].

    According to article 6, CF/88, health is a social right and constitutes one of the three systems integrating Social Security, along with welfare and social assistance. The materialization of this fundamental right, however, needs the implementation of effective public policies and services, which constitutes a positive obligation to be accomplished by the State.

    Through this perspective of constitutional rights and guarantees, health is also a fundamental right of children and teenagers and must, as written in article 7 of federal law 8.069/1990--Child and Teenager Statute (ECRIAD)--be implemented "[...] Through the establishment of public social policies that allow a healthy and well-balanced birth and development in dignified living conditions".

    Children and teenagers are beings in a peculiar stage of development, which is why they need full protection and utmost priority in the assurance of their fundamental rights, since their context is one of social vulnerability.

    It is the State's duty to create and implement public policies intended for the universe of childhood and adolescence. On the other hand, chronic underinvestment in the public healthcare system and the lack of social and political commitment are important challenges that must be overcome. Some of these policies, such as specialized treatment for drug addiction in this particular age group, were never enforced in most Brazilian municipalities.

    In this scenario of inadequate effectiveness of fundamental rights, the action of the "Child and Teenager Rights Guarantee System" (SGD) is crucial. This revolutionary mechanism of network protection was conceived by the ECRIAD and regulated by the Resolution 113/2006 of the National Council of Child and Teenager Rights--CONANDA. It establishes a model of wide articulation and integration between all government bodies and the civil society, with the goal of elaborating and enforcing public policies for the protection of all human rights granted to that age group (article 1, Resolution 113/2006--CONANDA).

    The SGD structures itself around three lines of action: promotion, control and defense of rights. In the defense front, it is formed by the judicial branch (specially Childhood and Youth Courts), the Public Prosecutor's Office, the Public Defender's Office, Defense Centers, Public Safety, Counsels of Child and Teenager Rights and Guardianship Councils.

    In this context, the judicial power and the Public Prosecutor's Office emerge as important actors of the defense line of action, since both access to justice and the adoption of legal protection mechanisms are forms of materialization and enforceability of the violated rights.

    The indirect judicialization of health, this work's object, appears through the application of "Incidental Protective Measures". The use of this procedural mechanism, as a means to guarantee access to public healthcare policies for children and teenagers, has been constantly used, and especially by public prosecution. As a result of the repeated use of this instrument, a new way of judicializing health has been crystallized.

    The research, conducted through case study methodology, will discuss matters such as the right to healthcare, direct and indirect judicialization of health and incidental protective measures. Results obtained using a data collection standard form will be presented and analyzed through charts and tables.

    This paper's main goal was to shed light and encourage studies on a little known subject with few published works. With the adequate analysis and comprehension of the phenomenon, we hope to contribute for the strengthening of the Child and Teenager Rights Guarantee System and the improvement of the jurisdictional administrative protection undertaken by Specialized Courts of Childhood and Youth.

  2. The judicialization of health

    With the enactment of the 1988 federal constitution, health was granted the status of a fundamental right, therefore inherent to all citizens. Pari passu, it became the State's positive obligation. However, the universalization of the newly established public health depended on a comprehensive and rigorous infra-constitutional legislative process to ensure full implementation and effectiveness. For that matter, article 197 of the constitution imposed responsibility on the State to formulate a regulatory framework for the whole healthcare system with the identification of health actions and services as being of "public relevance" (ASENSI, 2012).

    While regulating the constitutional provisions on the matter, federal law 8.080/90 assured in article 2 that "health is a human being's fundamental right, obliging the State to provide the indispensable conditions for its full exercise". In order to protect and materialize this fundamental right, article 4 of this law, inspired by article 198 of the constitution, created the Sistema Unico de Saude (SUS, Unified Health System). It consists of a "series of health actions and services provided by federal, state and municipal bodies and institutions, the direct and indirect public administration and foundations maintained by the public authority".

    Therefore, SUS is a complex and dynamic healthcare system aiming "the promotion of comprehensive and universal care, preventive and curative, through the decentralized administration and provision of health services, promoting community participation in all government levels".

    A true constitutionally recognized public subjective right, health is also considered a fundamental right inherent to children and teenagers. It is, according to article 4 of ECRIAD, "[...] duty of the family, community, society as a whole and the public authority to ensure, with absolute priority [...]" the realization of this right, among others. The same bill, in article 7, prescribes that "The child and teenager has the right to life and health protection by the realization of social public policies that allow healthy and well balanced birth and growth in dignified living conditions".

    However, as Franco (2014) puts it, "even without a deep investigation of the matter" it is correct to deduct there is a great hiatus between what is regulated in health public policy laws and what the population has actually been experiencing in public hospitals and health centers.

    In the face of the immense difficulties endured by the State, especially when it concerns the chronic under-financing of an eminently universal health system, the public administration has not been successful in complying the constitutional and legal directives, constituting service delay for citizens.

    This reality, which affects a great part of the population, is the main responsible for the rising judicial demand of actions that aim to ensure this fundamental constitutional right. And in the field of childhood and youth this scenario is not different.

    Based on the constitutional principle of the non-obviation of jurisdiction (art. 5[degrees], XXXV, CF), the judiciary has been increasingly demanded to act, compelling the public administration to comply with its constitutional and infra-constitutional obligations.

    The growing utilization of the judicial power as an instrument to ensure access to fundamental rights gave birth to a phenomenon called "judicialization of politics". The first decisive work to analyze judicialization was the compilation "The Global Expansion of Judicial Power", made by Neal Tate and Torbjorn Vallinder (1995). According to these authors, the "judicialization of politics" happens when the judicial power, based on the constitution, is demanded by a third party to decide a particular conflict that involves decisions of a political power, ruling over it. By letting itself interfere in other powers, especially the executive, there is noteworthy expansion of the judicial power over others.

    The judicialization of health is the judicial analysis and decision of matters involving various health provisions, such as the provision of orthotics an prosthesis, ambulatory and surgical medical assistance, drugs, dietary supplements, funding of treatments, among others.

    Facing its unquestionable relevance, numerous legal experts, sociologists and public health experts have exposed their considerations on the matter.

    After a thorough analysis of the main works on the theme, Machado (2010) identified "two lines of interpretation": the first, called "procedural", argues that judicialization un-institutionalizes society, marginalizing mediation institutions such as associations and political parties and privileging a part of the population over the collectivity. In a completely opposite path, the second line, of "substantial" nature, argues that judicialization is an important step towards the improvement of citizenship practice, assuring marginalized groups the expectation of having theirs fundamental rights materialized. By all means, he concluded, there are enough elements to adopt one position or the other.

    Corroborating the thesis of the "dual effect of judicialization" (1), Marques (2008, p. 65-70) deducts the debate over judicialization is very controversial and involves the everlasting opposition between individual and collective rights. On one hand, the judiciary's participation might be considered a positive activity, since it can reduce the violation of rights committed by the State against its own citizens. In that way, it represents "an advance concerning the effective practice of citizenship by the...

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