Prior administrative request and judicialization of public health: An analysis of the requirement and its exceptions

Abstract

The study analyzed to what extent the prior administrative request should condition the access to justice in public health demands. Initially, the deductive method was adopted, based on the concept of principles present in Robert Alexy’s theory of fundamental rights, to investigate the possibility of requiring this procedural assumption in the context of the collision between the principles of access to justice and due process of law established for the protection of the fundamental right to health. Then, through the inductive method, we analyzed the fundamentals of Supreme Court judgment that conditioned the filing of social security lawsuits to the prior administrative request in order to identify whether, considered as similarities and differences, these possible reasons would also be applicable, and to what extent, to the demands in terms of public health. Afterwards, the contributions of the adoption of the prior administrative request as a requirement for processing lawsuits on public health for the qualitative improvement of public health policy were exposed, as well as for the provision of jurisdiction and the appropriate resolution of conflicts in this field. At the end, the limits and exceptions to be observed regarding the requirement of prior administrative request in public health lawsuits were investigated, based on the fundamentals of the right to health and on the parameters that have been consolidated in the jurisprudence of the higher courts, in the statements of the Health Law Conferences and in the specialized literature.