Documento sem título


Judicialization of health problem and solution: issues for nursing

Eloá Carneiro CarvalhoI; Helena Maria Scherlowski Leal DavidII
INurse, Master in Public Health. Assistant Professor in the School of Nursing at the State University of Rio de Janeiro, Email:
II PhD in Public Health, Professor of the Graduate Program in Nursing at the School of Nursing at the State University of Rio de Janeiro, E-mail:

ABSTRACT: The Constitution of 1988 guaranteed to all Brazilians the right to health, however, the Health System cannot always meet the demands of the population, which triggered an increase in lawsuits in healthcare. This phenomenon gives the name of legalization. This article aims to reflect on this phenomenon, discussing the dignity of the human being as a value and the right to health as a republican principle, both guaranteed by the Constitution. Furthermore, it addresses the two conflicting studies are about legalization as a true citizenship and as nuisance activation of the judiciary in the executive power. Finally, it raises the importance of increasing nursing`s understanding on this phenomenon.

Keywords: Right to heatlhcare; judiciary; nursing; citizenship.




From the very beginning, it is that humans seek happiness as the reason for living, in the social, family and professional aspects.
Among the basic needs to achieve, the desired fullness of happiness is health. However, without health it is useless to conquer other biases, being that one’s own health "is socially shared in realization of projects of happiness1.
From a hermeneutic perspective, it can be said that, to reduce the understanding of a human dimension to a foundational rationality, which it admits are the concepts of health and disease polarities in opposition, is impoverished the possibility of understanding of discursive dimensions on the two concepts. For nursing, as a discipline and profession, the challenge is to reaffirm the founding values of solidarity and the universal right to dignified life2, a time of accelerated incorporation of care material technologies, and recovery of individual subjects to the detriment of collective well-being.
It is an important technical-scientific, humanistic, political and philosophical debate, where, the level of concrete social relations produced in the daily routine, do not solve the immediate question.- What to do when you do not have access to this as wellness, such a paramount need?
This Article intends to stimulate reflection on the judicialization of health and its role in the conquest of the access to healthcare. To analyze critically is - to what extent judicialization is a problem in health management of or an immediate solution in ensuring constitutional rights, reflecting the exercising of citizenship. To this end, it discusses the dignity of the human being as a republican principle that must be respected; health as a right of all and the duty of the State and its own judicialization in its implications for the health system, and for health and nursing practices.


Health as a right: a republican principle

The Constitution of the Federative Republic of Brazil (CRFB 1988) recommends, in its Article 196, that health care is a right for all and a duty of the State. Thus, health becomes a fundamental right, and it is constitutionally guaranteed aiming to protect human dignity2.
The positivization and attribution of legal significance to the principle of human dignity are subservient the international system of human rights protection, which came to light shortly after the Second World War, with the Universal Declaration of Human Rights, in 19483.
The concept of human dignity, consolidated throughout history, requires, inevitably, the recourse to philosophy4. The legal system that determine its content, but it is for the right enunciate interpretative principles, providing for their protection through freedoms and guarantees that guarantee them.
In Brazil, with the advent of the CRFB 1988, respect for human dignity became a supreme value of the democratic legal order foundation. It can be said that: "A constitutional system in line with the agenda evaluative affect the protection of the human being in its broader dimensions, sounding distinctly principle-logical , from the acknowledgment of their inherent dignity"5:630 .
The dignity of the human being is elected as a fundamental principle of law, corollary of the recognition of the human being by the CRFB. Today, it is imperative to ensure the human being the authority conferred upon them, unrelated to overcome subjective and patrimonial structure of legal relations6.
The Unified Health System (SUS) has as ideological principles the universality of access, the integrality of care and fairness are doctrines accepted respectively in articles 196; 198 and 1 , paragraph 3 , all of the Federal Constitution7. The realization of these principles ensures the dignity of the human being. When it refers to fundamental objectives (art. 3o) of the Brazilian State "devotes itself a finalistic concept, establishing itself goals, tasks, directions for the constitutional and infraconstitutional normativity"8:243. Pursuant to art.,above, section I, defines itself the construction of a free society fair and solitary. Yet (art 3. (2) .30 (III), it determines, the eradication of poverty and marginalization and the reduction of social and regional inequalities. The sub-items of art. 3o call on the powers of a promotional situation, through the conception of distributive justice, toward substantive equality, prohibiting prejudices of any kind4.
According to art. 5o, paragraph 2o, the rights and guarantees expressed in the Constitution does not exclude others, arising from the scheme and the principles adopted by it, or of the international treaties to which Brazil is a party9
In fact, Brazil has signed the Pact of San Jose de Costa Rica, whose art. 4o versa: "Everyone has the right to have their life respected. This right is protected by law and, in general, from the moment of conception"10. In addition, deserving emphasis is the subparagraph 3 (included by the Constitutional Amendment 45), art. 5o of the Federal Constitution, by stating that the international treaty to which Brazil is a signatory on human rights, "may have the status of constitutional law, namely effectively enforce and produce as if it were the device of the Constitution "when approved by each House of Congress11:128.
It considered that the principle on canvas "guideline value is not only of fundamental rights, but of the entire constitutional order, which is why it fully justifies its characterization as a constitutional principle of higher axiological-evaluative ranking"12:115
In addition, the CRFB ensures all the inviolability of the right to life (art. 5, caput) and, when it recognizes that respect for dignity of the human being constitutes an indispensable element to the legitimation of actuation of the Brazilian State. This requires the preservation of a dignified existence, without neglecting the indispensable conditions for the development of its own potential; protecting the material or spiritual dimensions of life"13.
It is worth pointing out that "the human life, which is the object guaranteed in art. 5o, caput integrates material elements (physical and mental) and immaterial (spiritual)" 14:20. The right to life points to the inviolability of rights regarding the life, "because it picks up any vital project, promote life, even when unable to maintain, by itself, the existence"15:25

Human dignity as a guiding principle of the right to health

The Magna Carta also sustains the right to health (article 196), the protection of the child and adolescent (art. 227), and the elderly (art. 230), indicating the promotion of the good of all, without prejudice or discrimination.
The abstract noun dignity means "moral quality which infers respect, awareness of oneself value, honor, authority, nobility"16:1040. By not being an unequivocal concept, the design on the dignity of life is of a multiplicity of meanings, impregnated with cultural, religious and ethical values, mainly in plural and democratic societies6. The concept is linked to the idea of unconditional respect at all stages of life17.
It links the most elementary demands of dignity of the person to the rights to life, as well as the rights of freedom and equality12. Not only these fundamental rights18, find their dimension in the principle of dignity, but political rights and social rights12.
The principle of the dignity of the human being is the guide for all the legal relations, giving support to other standards, aiding in the creation, interpretation and application, or can be used "directly and in main character and not secondarily"19:125.
It is recorded that, in a democratic society, it provides to all the groups and associations the exercise of political or social influence, with the purpose of competing with each other and thus access the power of the State and influence on economic and social life20.
It is worth noting that "the most recent legal literature has avoided formulating a concept on the principle of the dignity of the human being, to not to incur a fixist and philosophically overburdened concept"21:363. It is emphasized "the densification of the meaning of constitutional rights, freedoms and guarantees is easier than the determination of the specific meaning of the statement dignity of human beings"22:248.
Thus, the dignity of the human being imposes itself as criterion and valuation parameter, to guide the interpretation of the constitutional system23.
Links the principle of dignity of human beings to the moral integrity of all people, the simple fact of their existence in the world24. It adds, "it has not been single, however, the space to allow the principle transcript of an ethical dimension to the abstract and rational motivations and reasons of judicial decisions"24:116 notwithstanding, it has been contended that, in relation to the principle of the dignity of the human being, their

[...] core in which as a rule is represented by the existential minimum. Although there are more ambitious visions of the elementary principles reach (art. 7, IV CF), there is a reasonable consensus that it includes the right to minimum income, basic health, basic education and access to justice24:52.
The inviolability of the right to life, the first of human rights, it is the source of all other rights, is recommended with primacy by the majority of scholars of the subject, between the Fundamental Rights and Safeguards by the Constitution of the Republic. It clarifies that the current Constitution includes the right to life with greater force than the previous one, "when that ensured was the inviolability of rights regarding life. Now no: the inviolability is the right to life itself"15:25.

Role of the State in the right to healthcare

For the State to accomplish the right to life, it must implement public policies, obeying the democracy. In tight synthesis, realizing the fundamental rights, respecting the principle of the dignity of the human being, guaranteeing the right to healthcare.
The choice of public policies and their objectives is discretionary of legislative and executive powers. The judiciary is responsible for their control, establishing goals to be achieved2. This division must be in obedience to the constitutional principle of separation of powers and legitimacy stems from the CRFB, both regarded as corollaries of the Democratic State of Law2.
The control carried out by the judiciary in case of actuation or omission of the state; objectives or targets laid down in the law and control of programs or plans that have been set by the State.
Healthcare is a fundamental right that should be guaranteed and for this reason, SUS was created in the Federal Constitution itself. The SUS has principles with the aim of guaranteeing this right. However, what we have seen is the disorganization of the system and the difficulty of access, with the consequent judicialization of healthcare, in the guaranteeing of such a right. The judicialization can be translated as a way to get goods or rights through the judiciary power. After all, without the possibility of demanding itself the realization of rights, one cannot speak of rights2.
Today it can be observed that from one side exists the omission the State in the realization of health policies and the other a pressing need of some citizens, who have their access to health impeded. With this panorama, it was observed that the increase of litigation, representing, for some, a breakthrough in the exercise of citizenship and for designers of public policies, a major problem due to the amount of judicial orders to be fulfilled in a disorganized manner, causing an impact on public spending25.
The topic is thought provoking, because the CRFB guarantees the right to healthcare, particularly the prevalence of the dignity of the human being. This creates for SUS ineffective in practice these rights in fully and universally. It is important to reflect on the benefits and drawbacks of judicial decisions with great caution; after all, many times this is the only way the citizen exercising their right to healthcare.

The judicialization of healthcare: problem or solution?

Judicial is all that is done in judgment26. Judicialization is defined as judicial activism, i.e. when the Judiciary Power interferes in the policy choices of other powers. It is a phenomenon criticized by many Brazilian Doctriners, as they consider an invasion of the judiciary in other powers, injuring the constitutional principle of separation of powers.
Most of the studies on judicialization emphasizes the negative intervention of this demand for health management, arguing that would intensify the inequities in access to healthcare, privileging a certain segment and individuals, with greater power to claim, while others would be without care27.
Judicialization, until recently, was seen as an unwarranted interference of judiciary in planning and action of the executive and as a threat to local administrators. However, this phase is being vanquished and is seen as an ally of SUS28. Including, it is advocated the need to support the judicialization in the collective protection of the right to healthcare, especially when SUS is threatened by private interests28.
The judicialization in health presents itself as a recent phenomenon in Brazil, whose objective is to obtain goods and rights in the courts, those that are important for ensuring the health of the citizens. Among them asserting that special medicines, access to beds for the Intensive Care Unit (ICU), surgeries, prolonged treatments, among others.
This phenomenon may indicate failures in SUS, who for some reason cannot make its ideological principles such as universality, equity and integrality. For some, the judicialization in healthcare is seen as a way of ensuring access to health care, for others it would be an obstacle for health management, because the fulfillment of several court injunctions would result in unplanned spending29.
For that SUS is fulfilled in its fullness, there is the need of the effectuation of its principles and everyone should contribute. The nurse is a professional who carries out activities from the assistance until the management, and increasingly occupies more management positions. Their actions are influenced by socioeconomic variable policies;therefore, they must be prepared for changes and emergence of complex problems.
Over time, this professional has been assuming decision-making positions in both the analysis of the healthcare needs of the population as well as in the evaluation the provision of services. Therefore, the better understanding of the reasons for judicializationis necessary, which will allow nurses to meet a challenge that is redefining the practice of healthcare services as well as the training of nursing staff.


This study of judicialization is quite intriguing pointing to relevant questions on distributive justice, apart from having the fundamental the right to healthcare, the right to life and lastly guaranteeing the principle of dignity for human beings. It also evaluates what is the role of the judiciary in guaranteeing the right to healthcare.
For some, it would characterize an affront to the principle of separation of powers, however this position must be relativized, whereas, for many, is the only way to achieve access to healthcare and guarantee to life.
When people resort to the judiciary it is because nothing got in SUS, and based on the CRFB, the judicial power must enforce what is in its article 196.
Finally, it is understood that, for the health professions in general, and the nursing staff, in particular, to reflect on this topic imposes itself, in actuality, as a way of reaffirming the founding values of a profession and social practice that seeks to accomplish, on all planes, well-being and human potential. Thus, additional studies that deepen the ethical sense of the political and philosophical question as well as the ways in which judicialization gains concreteness in everyday healthcare practices, emerges as a new challenge to be faced by nursing, which may therefore contribute to its vision on a present day phenomenon, but with respect to fundamental human questions.



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