Judicial control over the administrative act of denying medication

an analysis of RE 1366243/SC (theme 1234) based on the dogmatics of fundamental rights

Abstract

This research investigates the contours provided by constitutional dogma to judicial control of the Public Administration in the provision of medicines not incorporated into the Unified Health System (SUS), based on the analysis of Extraordinary Appeal No. 1.366.243/SC (Theme 1.234), judged by the Federal Supreme Court. The study starts from the recognition of the right to health as a fundamental right of a service nature, whose realization requires coordinated action between the branches of government. The judicialization of health, although a legitimate instrument for protecting this right, cannot disregard the legal bases that ensure the rationality, equity, and sustainability of public policies. The paradigmatic decision of the STF establishes limits for the intervention of the Judiciary, linking the actions of magistrates to the constitutional, infralegal, and administrative parameters that govern the SUS, based on the theory of determining factors and the need to demonstrate the therapeutic efficacy of the requested drug. The research adopts a deductive methodology, of a qualitative nature, with a dogmatic approach, using jurisprudential and bibliographic analysis as its main techniques. It concludes that Theme 1.234 represents an important turning point in the Brazilian Judiciary, by proposing a deferential but not inert judicial action, based on objective criteria and committed to the preservation of human dignity.