Technical criteria for decision-making by public treasury small claims courts in judicial process about the fundamental right to health

Abstract

The problem of the annual growth of the judicialization of health in Brazil, according to the Justice in Numbers reports, published annually by the National Council of Justice, mainly in a scenario of increasing social need and increasingly scarce funding for social rights of health, gives rise to constant discussion. In the judicial sphere, it is noted that judicial decisions are responsible for the imbalance and interference in the scope of public policies, with direct interference in the implementation of the fundamental right to health of all citizens. Through the application of the hypothetical-deductive method, with a predominantly qualitative approach, the aim is to verify whether the judicial decision drawn up based on technical and standardized criteria guarantees equality of the fundamental right to health. The work is based on bibliographical sources, statistics and official data, obtained from reports from the National Council of Justice. As a result, it is seen that the decision-making model for the demands of the special court, regarding the right to health, need to be revised, given that they require knowledge from the court that goes beyond the law, with those related to medicine, health management public policies and the public budget. In this, five technical criteria are presented that can assist the judge when constructing the decision, ensuring that the judgment produced will meet minimum standards of rationality. In the end, it concludes that it is possible, based on the methods presented, to safeguard the right to health from a perspective focused on the community itself.