The fundamental right to health, the principle of reserving the possible and the minimum existence: a discussion in relation to rare diseases and the supply of medicines

Abstract

Health, being a fundamental social right, is one of the most important legal assets enshrined in the Brazilian Federal Constitution, with medicines being necessary goods to maintain health and, as such, human dignity.
The general objective of this article is to discuss the fundamental right to health, especially for people with rare diseases, such as the urea cycle disease, and about the principles of reserving the possible and the existential minimum, with origins in German and North American theories. americana, brought to the Brazilian legal-constitutional order and used as an element of defense when the right to health is invoked by judicial measure.
The problem of the research lies in verifying whether the Judiciary would not be denying the validity of the Federal Constitution itself, especially the right to health and human dignity to patients with rare diseases, by imputing the fulfillment of a series of requirements for the concession of non-medical drugs. registered at Anvisa and not included in the SUS list. The method of approach adopted is deductive and the method of procedure used is monographic. The main hypothesis responds to the research problem in order to demonstrate that judicial decisions, given the lack of action by the Executive and Legislative Powers in the face of the problem of granting medicines not registered with Anvisa to patients with rare diseases, seek to resolve the impasse, creating , on an exceptional basis, requirements to be fulfilled as a way of weighing the antinomy between the constitutional rules of the right to health and life and the infra-constitutional laws that require the procedural minimum for acceptance of the use of the medicine in the Brazilian market. It is therefore a question of meeting the right to health and life, but in accordance with the proof of the need and effectiveness of the medicine.