FORNECIMENTO GRATUITO DE MEDICAMENTOS PELO PODER PÚBLICO: POSSIBILIDADE DE CONTROLE JUDICIAL?

This paper deals with the fundamental right to health, a right recognized by the Brazilian Constitution of 1988, as a social right. Aims to analyze the administrative discretion as to the supply of medicines or not an individual or a community that needs it. It will also analyze the discretion of the Public Administrator, ascertaining the extent to which there is possibility of judicial control, all based on the Principle of Human Dignity, a guiding principle of the democratic State of Brazilian law. It is intended, therefore, to this end, undertake an analysis of the doctrinal and jurisprudential point of view of the subject in order to understand the (dis) proportionality of public policy in health that restrict the supply of certain drugs, stating this fact the theory of reserve for contingencies and financial condition of the person in need. It also seeks to address the issue from the perspective of judicial activism, a recurring theme these days, including establishing suggestions to be adopted by the judiciary when faced with the situation studied. For the preparation of this work, the assumptions were investigated by searching bibliographical, pure and qualitative type. It was concluded that currently there is a tendency to face the judicial activism as something negative for violating the Principle of Separation of Powers, since the judiciary shall be a more active stance, invading often the space belonging the discretion of the Public Administration. However, it is understood that judicial activism has a positive bias when looking through equity and weighting of assets in case of collision of rights, giving effectiveness and reasonableness in applying the prevalence of a right over another.