The jurisprudence of the Distrito Federal (Brazil) court of justice on medicaments lawsuits

Abstract

OBJECTIVE: To describe the conformation and characteristics of the jurisprudence of Distrito Federal Court of Justice (TJDF) (Brazil) related to medicines lawsuits. METHOD: Documental research in TJDF database on judgments of this court in the period of 2001 to 2005, referring lawsuits that pleaded medicaments supplying for Distrito Federal Secretariat of Health (SESDF). RESULTS: The main characteristics of jurisprudence consolidated in TJDF on the subject are: (1) recognition that the State rendering of pharmaceutical care constitutes materialization of constitutional right to life and health and legal imposition; pharmaceutical care is understood as a jurisdictionally tutorable right from which elapses the power of citizen to demand, of the State, to render it; (2) the difficulty of the judges in dealing with involved technical concepts and the incapacity or disinterest of defendants in explaining the result in little or absent technical content of the procedural briefs; (3) the preponderance of medical prescription over any other arguments; (4) the no-consideration of legal provisions in face of the precedence of constitutional provisions that institute the subjective public right to health; (5) the absence of concern by judges with economic and distributive consequences of their decisions; the reiterated manifestation that budgetary limitations cannot supplant constitutional provisions; decisions not to consider, also, the risk of compromising other programmed actions as result of concessive sentences. CONCLUSIONS: The judgment of lawsuits on antiretrovirais medicines, petitioned for AIDS patients against the SESDF, in the late '90, shaped the TJDF jurisprudence on the matter, that was consolidated in the studied period, promoting the materialization of the access to medicament as an element of the constitutional right to health, despite the negative impacts on technical, financial and managerial aspects of the adopted politic of pharmaceutical care.