Desjudicialização da saúde : impactos da análise econômica do direito e da economia comportamental

Abstract

From the neoconstitutionalism, the phenomenon of Constitucionalization of Law and in the face of ample access to the judiciary, coupled with the State's difficulty in providing health-related services, there was an increase in judicialization. This intervention by the Judiciary in the execution of public health policy, without the proper connection with the Executive, has several negative effects, due to the absence of paradigms that determine the scope of its performance, creating, sometimes, the Judiciary, its own regulation system and protocols in addition to those provided by the Unified Health System - SUS. Beyond the individual dimension, the health right is a social right. By granting the health right, individually, without analyzing the impacts on collective law, the Judiciary puts in risk the existence of SUS, in addition to violating the principle of equality, due to unequal treatment in the concession of the public health service. The present work intends to show that it is necessary to rethink the health judicialization process, how to reconcile the individual right to the right of all to the functioning of the public health system, now and in the future, through the study of the Economic Theory of Law and the Behavioral Economics.