Uniformization, collectivization and processual structuring of health care under the approach of economic analysis of law

Abstract

The general objective of this article is to demonstrate that the adjudication processes of conflicts related to the provision of public health policies must be guided by the rationalization and equity of the protection of fundamental rights. In order to substantiate this position, the methodology starts from the analysis of binding precedents of the Brazilian superior courts regarding the criteria to be observed when judgments involving health protection claims are made. It is argued that the justice system cannot leave aside the use of standardization, collectivization and procedural structuring techniques, without which the model for admitting individual demands – which strongly drives the phenomenon of “judicialization of health” – results in a kind of private appropriation of public policy. By means of bibliographic research, based on a critical verification of the economic analysis of law, this article has the specific objective to inquire to what extent it would be desirable or viable to adopt economic rationalities in the field of jurisdictional protection of fundamental rights, as well as whether this possibility could in fact imply greater efficiency at a lower cost for the health system. Then, as a result, it is exposed that, paradoxically, tolerance or incentive to file individual actions in public health matters is contrary to constitutional principles inherent to it, related to universality, isonomy and preventivity. Finally, based on applied research, it is proposed that individual actions by which public policies are pursued should be collectivized, in order to radiate the erga omnes effectiveness of jurisdictional protection for the benefit of all.