Procedural and Substantive Judicial Review of the Right to Health in Brazil

Abstract

La versione italiana di questo documento e disponibile all'indirizzo: http://ssrn.com/abstract=2481592La version en espanol de este articulo esta disponible en: http://ssrn.com/abstract=2439008A versao em portugues deste artigo esta disponivel em: http://ssrn.com/abstract=2363398This text seeks to identify the objective and subjective aspects of rights to an existential minimum in health care, based on international parameters which, because they are restricted to internal scope of a nation, depend on a constitutional basis and on comprehensible facts, the demonstration of which should be the responsibility of the national administrative authority. Regarding the judicial review of the minimum right to healthcare, this paper points out that it is a serious mistake to try to handle public health conflicts according to the typical judicial principles governing conflicts under private law, because that distorts the public health system, with judicial orders that depart from the universal access to health care and that are often impossible to comply with. The article concludes that the judicial review of administrative authorities in matters involving the right to health necessarily requires simultaneous judicial review of the corresponding administrative procedures.