CONSTITUTION HEALTH TREATMENT AND ITS JUDICIALIZATION

Objective: To analyze the right to health and access to medicines and medical treatments in the face of increased judicialization. Theoretical Reference: Health is a social right of full effectiveness and immediate fulfillment (Art. 6, Federal Constitution). Art. 196 Federal Constitution states that it is right of all and responsibility of the state, guaranteed by social and economic policies that aim to reduce the risk of disease and other illnesses, ensuring universal and equal access to actions and services for the purpose of promotion, protection and recovery and in art. 198, item II, includes, within the scope of the SUS, comprehensive therapeutic assistance, including pharmaceutical assistance, regardless of contribution. Method: The narrative review was carried out by collecting data and selecting relevant sources from books, articles, legislation and case law. Results and Discussion: The results obtained revealed that the judicialization of health is a multifactorial phenomenon. There are two types of judicialization: the request for medicines provided for in normative acts and those that have not been incorporated. In the discussion section, these results are contextualized with the theoretical framework, highlighting implications and relationships. Possible discrepancies and limitations of the study were considered. Research Implications: The practical and theoretical implications of this research are discussed, providing insights into how the results can be applied or influence health and justice practices. Originality/Value: The study contributes to the literature by synthesizing the main implications of the judicialization of the right to health.


INTRODUCTION
The concept of health has changed over time.Previously understood only as the absence of diseases, since 1988, the WHO (World Health Organization) has expanded the concept of health to quality of life, calling it the complete state of physical, mental, spiritual and social well-being.
The Constitution of the Federative Republic of Brazil of 1988 (CF) was the first Brazilian constitution to elevate the right to health to the category of fundamental social right (art. 6,CF), which brings about the immediate applicability and implementation of public policies.
Article 196 of the Constitution of the Republic states that health is a right of all and a duty of the State, and must be ensured through "(...) social and economic policies aimed at reducing the risk of disease and other health problems and universal and equal access to actions and services for their promotion, protection and recovery".
Analyzing the legal concept of health provided for in the above constitutional article, it is noted that the State must guarantee the population the right to full health, understood as prevention, medication and quality of life.
Articles 197 to 200 of the Constitution of the Republic assign to the Public Power the mission of regulating, supervising and controlling the actions and services of the sector, which must take place through the Unified Health System (SUS), whose guidelines are decentralization, comprehensive care, giving priority to prevention, without losing sight of the care services and the participation of the community.
The reforms of the Code of Civil Procedure from 1973 to 1990 led to a strengthening of the Judiciary, whose proactivity began to interfere in the other Powers for the materialization of constitutional values, giving rise to the so-called "judicialization of health".
There are two types of medicines and their judicialization: the judicial request of the medicines provided for in normative acts as members of the SUS and those that are not incorporated in the said normative acts.4 With regard to the treatments provided for in the normative acts of the SUS, these are called protocol treatments and the absence of the availability of the medicine is understood as a failure in the provision of the public service.
As regards off-label medicines and other medicines not listed in the SUS protocol, the higher courts have defined the criteria for their supply.

THEORETICAL FRAME
The concept of health changed during the historical process.In 1946, the World Health Organization (WHO) adopted the following concept: "(...) a state of complete physical, mental and social well-being and not only the absence of diseases and ailments".This concept was not welcomed, as life is not static, i.e. it is continually changing.The 'complete' state proclaimed in that concept is therefore rather utopian.(MEC, 2023) The Brazilian health reform, which began in 1960, played a crucial role in the universalization of the Brazilian health system, in view of the fact that "(...) advocated that all people, regardless of social class, should receive medical care whenever they need it and at all levels and degrees of complexity".(CECIERJ Foundation, 2023) In 1986, the SUS took shape through the 8th National Health Conference.The generated report distinguished Health from Welfare; it approved proposals for integration, regionalization and hierarchization, as well as the need for popular participation -through councils and conferences.(Ministry of Health, 2019) Subsequently, in 1988, the concept of health was updated by the WHO.According to this new concept: "(...) health is a dynamic state of complete physical, mental, spiritual and social well-being, and not merely the absence of disease or infirmity", so that dynamicity comes to be considered and comes to be faced with more real and attainable aspects of health.
Faced with this new concept perpetrated by the WHO, it has to be said that the human being must have his health considered, above all, on four aspects: physical, mental, spiritual and social.These aspects are interdependent in order to be fully careful.They must be analyzed individually, that is, one by one -so that they are not purposely left out -but also as a whole.
Thus, in order to stick to the concept of health, one must observe the quality of life of the individual itself and in its social relations, with the community and with the environment.
What one can see is that, in more remote times, health was regarded only as the absence of disease, or that is to say, sickness was regarded only as physical/biological.There is a tendency to deconstruct this thinking by replacing it with a new paradigm.Furthermore, as already mentioned, the focus of the past was the treatment of biological diseases, purely physical aspects.At the same time, however, we can see the growth in public actions and policies aimed at prevention in all aspects related to health, since besides being less financially costly, they are more effective (OLIVEIRA, 2022).
The humanization of medicine is a necessary aspect, especially to move away from the exaggerated technicality of the past and to solidify the doctor-patient relationship, above all based on empathy.
Thus, the doctor in Brazil must have an integral view of the patient, thus considering all aspects of his health.He must consider him as the human being he is: not by segmenting him, but by respecting the dignity of the human person.

METHODOLOGY
The methodology employed was that of the narrative review, through definition of the research question; identification of relevant information in books, articles, legislation and jurisprudence; reading and selection of the most pertinent sources; analysis and critical interpretation of the collected information, organization and synthesis of the found and written text.The limitation of the study is done in the light of the form of material selection that has a great interference from subjective perception.

RESULTS AND DISCUSSIONS
The right to health is directly related to the right to life and to the principle of human dignity, characterizing itself, as it is currently structured, as a great victory of the Brazilian social movement for democratization.The first dimension of human rights, created at the end of the 18th century, is made up of civil and political rights, marked by an abstention of the State.They are the rights to freedom of association, assembly, partisan and habeas corpus.
This first dimension was the fruit of the Liberal State, strongly marked by the rise of the Bourgeoisie to power, which called for the freedom to use property and contracts with the minimum of state intervention.Dalmo de Abreu Dallari (2007), in his book "Elements of the General State Theory", explains: In any event, the liberal State, resulting from the political rise of the bourgeoisie, organized itself in such a way as to be as weak as possible, characterizing itself as the minimal State or the police State, with functions restricted almost to the mere surveillance of the social order and protection against external threats.
The author describes three positive points of economic liberalism, namely, the structuring and optimization of the Legislative Power, the enhancement of individual freedom and economic progress.On the other hand, it points out that strong selfish behavior has developed, leaving social rights in the background (DALLARI, Dalmo, 2007).
Second-level or generation human rights, structured at the beginning of the 20th century, are characterized by the great desire for equality, and greater intervention by the state is necessary to curb the abuses of the bourgeoisie, thus guaranteeing rights such as health, education, housing, work and social security.
The key element of third-dimensional human rights is fraternity.Organized in the 1970s, they are characterized by being collective rights, such as peace, the harmonious environment and the autonomy of peoples.
With regard specifically to the right to health, which is the central theme of this scientific article, it should be noted that, surprisingly, it was only the Constitution of the Federative Republic of Brazil of 1988 that elevated it to the category of fundamental right.
In the 1930s, in Brazil, with President Getúlio Vargas, discussions began on social rights, however, the focus was the health of the worker, without major transformations until the 1970s, with the movement of sanitarians.In short, the constitutions prior to that of 1988 merely conferred on the European Union the competence to legislate on the matter from the point of view of administrative organization for the fight against endemic and epidemic diseases, but not from the point of view of human rights (SILVA, 2007).
Gomes Canotilho and Vital Moreira (1984) stress that the right to health, in the same way as social rights in general, has two aspects: "one, of a negative nature, which consists in the right to demand from the State (or from third parties) that it refrain from any act that harms health; another, of a positive nature, which means the right to state measures and benefits for the prevention of diseases and their treatment".
The SUS is the largest public health policy in the world, since there is no co-participation and its reach is two hundred and ten million inhabitants (SANTOS, 2022).
In 1948, the United Kingdom created the National Health Service (NHS), a health care system that was the precursor to SUS, but its reach is just over sixty-seven million inhabitants, with some services being charged, such as ophthalmology and dentistry (MAGNUS, 2022).
Canada has a health system similar to the Brazilian one, MEDICARE, reaching thirtythree million inhabitants, with the exclusive funding of the State.Countries such as Australia, Sweden, Denmark, Spain, Portugal and Italy also have health systems that resemble SUS.In Germany, France and Japan, there is no completely free healthcare, and the patient must pay for part of it (DOMINGUEZ, 2010).
Brazil has organized a public health system based on "universality and equity of access to resources necessary for integral health", thanks to the movement of sanitation (JUNGES, 2009).
The 8th National Health Conference, which took place in 1986, greatly influenced the democratization of health and its constitutional treatment, positioning it as a right of all and a duty of the State, according to article 196 (JUNGES, 2009).This constitutional provision also provides that health must be guaranteed 'by means of social and economic policies aimed at reducing the risk of disease and other health problems and at universal and equal access to measures and services to promote, protect and restore them'.
Analyzing the legal concept of health provided for in the constitutional article 196, it can be seen that it relates to prevention ("reduction of the risk of disease and other conditions" and "protection"), medication or curative health ("recovery") and quality of life ("promotion") (SCHWARTZ, 2001).Art.3: Health levels express the social and economic organization of the country, with health as determinants and conditioning, among others, food, housing, basic sanitation, environment, work, income, education, physical activity, transportation, leisure and access to essential goods and services.Single paragraph.Actions which, by virtue of the preceding Article, are intended to ensure that persons and society enjoy conditions of physical, mental and social wellbeing shall also relate to health.
Interpreting the above-mentioned sub-constitutional provision, it appears that the guarantee of the right to health presupposes the implementation of various public policies related from the minimum for physical survival to the leisure of the citizen.
It should also be noted that the protection of the right to health is provided for both in the constitutional text and in other infraconstitutional texts such as the Civil Code, the Statute for Children and Adolescents, the Consumer Protection Code, the Patent Law, the Statute for the Elderly, the Statute for the Disabled, etc., forming the so-called "regulatory multiguardianship".(ROCHA, 1999).
The aim of guaranteeing the right to health has led, for example, to the creation of criminal standards for the protection of life, physical integrity, the environment, public health, administrative standards for health surveillance and access regulations to the SUS, including Mariana Siqueira de Carvalho (2003), in her article entitled "Health as a Fundamental Social Right in the Federal Constitution of 1988", stressed the applicability of the right to health: The right to health, like any fundamental right, has immediate applicability, even if this applicability is not, immediately, the widest possible, since it depends, in some aspects, on the conformation of the infraconstitutional legislator, of the "financially possible", of the political will of each spatial-temporal situation, among other determinant factors.However, the Federal Constitution of 1988 provided for sufficient rules to ensure that the right to health is not left waiting for these conditioning elements to take effect.
The author (CARVALHO, 2003) explains that the right to health presupposes positive benefits from the State, and the constitutional chapter on social order contains the necessary provisions for its implementation, such as: "the regionalized and hierarchical integration of health actions and services into a single system; the characterization of actions and services as "of public relevance", as well as the collaboration of the community, the duty of society being the control of actions and omissions of the state, besides its active participation in the creation of public policies and in the application of funds intended for the sector.
In Brazil, the judicialization of health is a multifactorial phenomenon that began after 1988, with the objetive of offering treatments for those infected with the AIDS virus (a disease caused by infection with the Human Immunodeficiency Virus).
Every Constitution breaks with the previous State, giving rise to a new legal order, which is why the Federative Republic of Brazil, legally, began on October 5, 1988, with the publication of the Constitution.
The backbone of the Constitution of the Republic of 1988, the preparation of which represents the political opening up and the re-democratization of the country, is the foundation of the Dignity of the Human Person, and health is essential for its realization.
In 1987, the first case of AIDS in adults was diagnosed in Brazil and, in the following year, the first child infected, which mobilized the country to optimize public health policies for coping with the disease (SOUZA, SANTOS E OLIVEIRA, 2015).
In parallel, the reforms of the Code of Civil Procedure from 1973 to 1990 led to a strengthening of the Judiciary, whose proactivity began to interfere in the other Powers for the materialization of constitutional values, giving rise to the so-called "judicialization of health".With regard to the treatments provided for in the normative acts of the SUS, these are called protocol treatments and the absence of the availability of the medicine is understood as a failure in the provision of the public service.
As for off-label drugs and other drugs not included in the SUS protocol, the Superior Court of Justice (STJ) affirmed the thesis, in Theme 106, when judging RESP 1.657.156,elevated to the category of repetitive, that coverage by the SUS requires the medical report drawn up by the doctor attending the patient, that treatment is indispensable (adequate and necessary) for its recovery, being ineffective the remedies provided by the SUS; besides the financial inability of the patient and his family to bear the treatment, as well as the registration of the medicine in ANVISA (2) The STJ modulated the effects of the decision from the date of publication of the judgment, which is, 4/5/2018.The Supreme Federal Court, in its 500th Theme, judging RE 657.718, affirmed the thesis that, as a rule, there is no obligation for the State to provide experimental medicines, that is, not yet registered by ANVISA, being possible, as an exception, coverage of the treatment when there is unreasonable delay of ANVISA for the examination of the application (time longer than provided for in Law No. 13.411/2016 -ninety days, from the protocol of the application) met the following requirements: application for registration of the drug compound In Brazil (subject to the hypotheses of orphan medications for rare or ultra-rare diseases); existence of registration of the drug substance in regulatory agencies abroad that are of renown and absence of a therapeutic substitute already registered in Brazil.
The demands that ask for the supply of drug compounds without the registration of ANVISA should include only the Union in the passive pole, since what is questioned is the omission of an act of a federal regulatory agency (theme 500, STF).
In the specific case of RE 657.718, the Federal Supreme Court (STF) ordered the supply of high-cost medicine for the treatment of the disease called AME (Spinal Muscular Atrophy), which is a rare neurodegenerative disease that affects newborns.In the case under examination, the patient was a child over two years of age.
The Supreme Court, judging RE 855.178, determined, in Theme 793, the obligation of solidarity between the Union, States and Municipalities of provision of health services, the judicial authority must direct compliance according to the rules of allocation and competence, besides ordering the restitution to those who paid the costs of medication.

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The STF, in the judgment of the Repetitive Extraordinary Appeal 1.165.959(theme 1.161), affirmed the thesis of allowing the importation of medicines for consideration without the registration of ANVISA, but which have the authorization of the latter for importation, as is the case of cannabidiol for therapeutic purposes.
In the judgment cited, the STF listed the following requirements for the free supply of the drug compound: the economic incapacity of the patient and his family, the clinical necessity of the treatment and the impossibility of substitution by another medicine listed in the SUS protocols.
The Supreme Court, judging RE 1.366.243,elevated to the category of repetitive, defined the passive legitimacy of the Union and the competence of the Federal Court in actions that request the supply of medicines registered in ANVISA, but not standardized by the SUS (theme 1.234).
The Supreme Court has not yet defined the thesis of general repercussion of the theme 006, about the judgment of the recurring extraordinary appeal of n. 566,471, however, already decided on the merits of the appeal on 11/3/2020.Theme 6 deals with the rule of the impossibility of supplying high-cost drug compounds registered by ANVISA, but not included in the list of medicines provided by the SUS and its exceptions, under the argument of high spending in the public budget.The origin of the appeal lies in Rio Grande do Norte.The judgment will only end when the Supreme Court draws up the thesis of theme 6.
As regards the positive aspects of the so-called judicialization of health, author Fabiola Sulpino Vieira (2022) highlights the encouragement of the development and review of public policies, the inclusion of health in the political agenda, the improvement of health technologies, as well as the promotion of dialog between the powers.
As to the negative aspects, the author highlights the disorganization of SUS and public spending, misguided judicial decisions, the weakening of isonomy, "the disregard of the criteria for prioritizing the technologies made available and the widening of inequalities in health" (VIEIRA, 2022).
Such arguments about the negative aspects do not deserve to flourish.Considering that the judicialization of health, in Brazil, dates from the early 1990s and that it is an expanding phenomenon, the expenses in the supply of medicines deferred in court demands are foreseeable, allowing not only the planning of the SUS, but also the improvement in the provision of services, making possible the correction of errors to avoid new judicial demands.12 Carlos Eduardo Artiaga Paula and Cléria Maria Lôbo Bittar (2017) emphasize that "the judicialization does not favor only the class of plaintiffs, since judicial interference drives the creation of public policies that benefit everyone", that is, several court convictions determining that the SUS provides a certain medicine suggest that the said System should make it available.
Furthermore, the authors stress that it is precisely the provision of services that is deficient that enforces judicial demands, in view of the Judiciary's assessment of cases of injury or threat to rights, under Article 5, XXXV, of the Constitution of the Republic, being indispensable a management of the judicialization, as occurs with the population, political interest and scarcity of resources (PAULA and BITTAR, 2017).
The judicialization of health improved public policies for the treatment of AIDS, besides making protocol other drug treatments that were not previously provided by the SUS, thus representing a benefit to the whole collectivity.Carlos Eduardo Artiaga Paula and Cléria Maria Lôbo Bittar (2017) conclude: Judiciary is certainly a problem if one considers the approach of the administration, but when one considers the viewpoint of the person, judicial interference is not only desirable, but in some cases necessary, in order to assert the rights, especially of minority groups or by means of the value-added interpretation of legal rules.Judicialization therefore needs to be maintained, and, if the present juncture of increasing lawsuits continues, judicial interference is something that tends to be maintained.
The right to health is a fundamental right and as such it is immediately applicable.
Constitutional and infraconstitutional rules ensure that such a far-reaching right is not left at the mercy of political programs, while the judicialization of health brings with it the improvement of the provision of services of the SUS.The pillar of human dignity will only materialize when internationally established health standards are met.
In addition, the limitations of the study and possible directions for future research are discussed.It is fundamental that both the results and the discussion are grounded in solid evidence and that they contribute significantly to the advance of knowledge on the theme addressed.

CONCLUSION
In 1986, the Unified Health System took shape through the 8th National Health Subsequently, in 1988, the concept of health was updated by the WHO.According to this new concept: "(...) health is a dynamic state of complete physical, mental, spiritual and social well-being, and not merely the absence of disease or infirmity", so that dynamicity comes to be considered and comes to be faced with more real and attainable aspects of health.
The right to health is directly related to the right to life and to the principle of human dignity, and, as it is currently structured, is characterized as a great victory of the Brazilian social movement for democratization.This is a fundamental social right, as well as education, food, work, housing, transport, leisure, security, social security, maternity and child protection and assistance for the destitute, according to Article 6 of the Constitution of the Republic.
The Single Health System is the largest public health policy in the world, since there is no co-participation and its scope is 210 million inhabitants 8 .
In Brazil, the judicialization of health is a multifactorial phenomenon that began after 1988, often defining the criteria for the supply of medicines and the speed that the sick person needs.
Constitutional and infraconstitutional rules ensure that such a far-reaching right is not left at the mercy of political programs, while the judicialization of health implies the improvement of the provision of SUS services.
The pillar of human dignity will only materialize when internationally established health standards are met.
Constitution Health Treatment and Its Judicialization ___________________________________________________________________________ Rev. Gest.Soc.Ambient.| Miami | v.18.n.7 | p.1-15 | e08143 | 2024.5 In this tuning fork, health encompasses much more than the absence of physical disease.Examples are: routine healthy eating, physical exercise, water intake in adequate quantity and with quality, quality of sleep, housing, leisure, transportation, freedom, work, education, mental health, income, environment, absence of smoking and spirituality.(Ministry of Health, 2019).Specifically in Brazil, a new professional in the medical area has been expected and shaped, especially in the light of the new curricular guidelines established by the Ministry of Education (MEC), which establish that the training is generalist, humanist, critical and reflective.(RESOLUTION NO 3 OF 20 JUNE 2014).
Constitution Health Treatment and Its Judicialization ___________________________________________________________________________ Rev. Gest.Soc.Ambient.| Miami | v.18.n.7 | p.1-15 | e08143 | 2024.6 This is a fundamental social right, as well as education, food, work, housing, transport, leisure, security, social security, maternity and child protection and assistance for the destitute, according to Article 6 of the Constitution of the Republic.Social, economic and cultural rights are classified as second-dimensional human rights, which require state public policies, usually described in program norms, for their realization.
Constitution Health Treatment and Its Judicialization ___________________________________________________________________________ Rev. Gest.Soc.Ambient.| Miami | v.18.n.7 | p.1-15 | e08143 | 2024.7 Constitution Health Treatment and Its Judicialization ___________________________________________________________________________ Rev. Gest.Soc.Ambient.| Miami | v.18.n.7 | p.1-15 | e08143 | 2024.8 Articles 197 to 200 of the Constitution of the Republic assign to the Public Power the mission of regulating, supervising and controlling the actions and services of the sector, which must take place through the SUS, whose guidelines are decentralization, comprehensive care, giving priority to prevention, without losing sight of the care services and the participation of the community.The participation of private initiative is allowed, being the responsibility of the SUS, for example, the control and supervision, the execution "of actions of health and epidemiological surveillance", in addition to the health of the worker, the provision of the training of human resources in the health area, the participation of the elaboration of the policy and the execution of the basic sanitation actions, the support of scientific and technological development in the health area and the collaboration in the protection of the environment, in accordance with Articles 199 and 200, of the Federal Constitution.According to the WHO (World Health Organization) constitution, "possession of the best state of health that the individual can attain is one of the fundamental rights of every human being" (DALLARI, Sueli G, p. 19).Article 3 of Law 8.080/90 (LOS -Organic Health Law) provides: Constitution Health Treatment and Its Judicialization ___________________________________________________________________________ Rev. Gest.Soc.Ambient.| Miami | v.18.n.7 | p.1-15 | e08143 | 2024.9 private participation, in respect of the Solidarity Principle.(SARLET and FIGUEIREDO, 2008).
Constitution Health Treatment and Its Judicialization ___________________________________________________________________________ Rev. Gest.Soc.Ambient.| Miami | v.18.n.7 | p.1-15 | e08143 | 2024.10 There are two types of medicines and their judicialization: the judicial request of the medicines provided for in normative acts as members of the SUS and those that are not incorporated in the said normative acts.
Conference.The generated report distinguished Health from Welfare; it approved proposals for Constitution Health Treatment and Its Judicialization ___________________________________________________________________________ Rev. Gest.Soc.Ambient.| Miami | v.18.n.7 | p.1-15 | e08143 | 2024.13 integration, regionalization and hierarchization, as well as the need for popular participationthrough councils and conferences.(Ministry of Health, 2019).