Judicialization of Medicine and the Budgetary Impact on Public Administration: A Medicolegal Approach

Abstract

This study analyzes the Judiciary’s performance in the implementation of public health policies, as well as the impact of the so-called judicialization of health on the public budget. It aims to present basic aspects of the so-called judicialization of health, stressing the role of legal medicine in the phenomenon of health regulation. A bibliographical review was conducted, followed by systematization of the collected material. The research method adopted was a literature review focused on the Brazilian Judiciary’s recent regulations and their impact on public health policies, considering the State’s duty to promote free and universal health, as stipulated in the 1988 Constitution. Data was collected from Federal Government portals, specifically from ordinances, announcements, technical notes and judicial decisions, issued respectively by the National Council of Justice, the Ministry of Health, the Federal Attorney General and the Federal Supreme Court. The data was then analyzed. The results show that health regulation and, consequently, judicialization of health have a dramatic impact on the public health budget, to the point that, without the legal operators’ advanced professional training, the health system will not be able to sustain itself for long. The research concludes that it is not possible to accurately predict the course regulation will take in Brazil. There is a tendency to provide tools for qualifying the Judiciary regarding the process of technical analysis of lawsuits that are judicialized. The contribution of legal medicine in this technical support, whether through technical reports, opinions or acting in commissions, helps the Judiciary to prevent fraud involving the provision of health services, thus optimizing the expenditure of public coffers arising from judicial activism.