Judicialization of the Right To Health in the Area of Neoplasms: Elements of the Proof And Decision

Abstract

This article aimed to examine the characteristics of the judgments and judicial interpretations of the Federal Regional Court of the 4th Region concerning the right to health in the area of neoplasms in 2022, especially regarding the evidence of the facts stated in the proceeding and the corresponding decision. A search was carried out in the court’s jurisprudence, between March and April 2023, identifying 403 judgments issued from January to December 2022. Of the 403 judgments, 361 lawsuits concerned the provision of antineoplastic drugs (89.58%). With regard to elements of evidence, the 361 judgments referring to requests for antineoplastic drugs were specifically analyzed. As for prior expertise, 194 (53.74%) of the 361 antineoplastic drug cases reflected the understanding that this requirement could be waived when the patient was undergoing treatment at High Complexity Oncology Units/ High Complexity Oncology Centers. In such situations, it could be replaced either by technical advice from the Nucleus of Technical Support of the Judiciary or by a favorable decision of incorporation of the medication by the National Commission for Incorporation of Technologies in the Unified Health System. Of these 194 cases, 185 (95.36%) included a request for injunctive relief. It can be concluded that the judicialization of health will remain on the agenda of the Judiciary, whether due to judicial enforceability or the need to understand the role of the State in the implementation of public policies. Thus, it is necessary to strengthen the construction of joint and permanent agendas between the branches of government and Civil Society, aimed at addressing and understanding this phenomenon.