ATIVISMO JUDICIAL NA SAÚDE PÚBLICA: cautela jurisdicional nas ações de medicamentos

Abstract

The national reality is marked by the state's inability to provide medicines through the finitude of its resources and the conflict caused powers. On one side is the judicial intervention of indispensability for realization of the right to health, the other, a reflection of the risk before the guarantee of other rights, thanks to the budget commitment. Is not even among the scholars note of the problem and the existing conflict. Currently, prevailing protecting the existential minimum by analysis of each case. However, could prevent the filing of numerous actions claiming the right to health via lawsuit if any, by the government, more effective management of public police to health as well as the dispensing medicaments. While the absence thereof, the equal role of the judge is quite hard, in that it requires the consideration of several equally important aspects for maintaining social order in accordance with the principles outlined in the Constitution, being the same reconsider the principle of separation of powers, the principle of reservation is possible and existential minimum, taking them into consideration so as not denote a greater extent of damage to the population. When deciding a lawsuit involving the supply of medicine, Brazilian judges should stick to the file, basing their decisions not only on legal arguments, but factual, so as not to cause a greater harm to society.