Changes brought by Theme 1234 to the Judicialization of Health and the Role of the Public Defenders’ Offices

Abstract

Objective: To evaluate the changes resulting from the judgment of Theme of General Repercussion No. 1234 by the Federal Supreme Court in the judicialization of health and its impact on the performance of Public Defender's Offices for the access to health justice by the underprivileged population. Methodology: critical analysis of the jurisprudential change represented by the decision in question, especially in view of the paradigm of federative solidarity in health matters. The study was developed in a descriptive way, through jurisprudential, bibliographic and institutional database research, based on the historical evolution that supported the ruling and on the comparison with other cases decided by the Court. It culminates in an exploratory evaluation of the repercussions of the decision on the provision of legal assistance by the defender's bodies, in the context of the right to health. Results and discussion: From the analysis of the ruling, in comparison with the conduct in force until then in the judicial phasis, the following were observed, as main changes: the definition of cases of federal and state jurisdiction for pharmacological assistance, the emphasis on calculating the value of the claim according to official and non-market parameters, the orientation about the way of compliance, the creation of a national platform. The new discipline also highlighted the need for the Federal Public Defender's Office to be internalized in order to take on federalized demands, which, however, clashes with the structural reality of the agency. Conclusion: in spite of the intention of systematizing and rationalizing the matter, the decision of Topic 1234 seems, at first, to pose serious practical difficulties to the realization of the right to health through the courts, notably, in federalized cases, for the underprivileged population, largely dependent on the Unified Health System and on the public defense assistance.

Submission: 10/09/24| Review: 10/25/24| Approval: 10/25/24