Duração razoável dos processos judiciais da saúde: tramitação preferencial e efetividade da prestação jurisdicional

• Ano de defesa: 2017
• Autor(a) principal: BARCELLOS, Ana Luiza Berg
• Orientador(a): NOGUEIRA, Vera Maria Ribeiro
• Banca de defesa: GASTAL, Alexandre Fernandes , APOLINARIO, Marcelo Nunes , CHIES, Luiz Antônio Bogo
• Tipo de documento: Tese
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Universidade Catolica de Pelotas
• Programa de Pós-Graduação: Programa de Pos-Graduacao em Politica Social#; #-7895665898047196699#; #600
• Departamento: Centro de Ciencias Sociais e Tecnologicas#; #-8792015687048519997#; #600
• País: Brasil
• Palavras-chave em Português: acesso a justiça; direito à saúde; duração razoável do processo; tramitação preferencial dos processos; efetividade da prestação jurisdicional
• Área do conhecimento CNPq: CIENCIAS SOCIAIS APLICADAS::DIREITO#; #-7277407233034425144#; #600
• Link de acesso: http://tede.ucpel.edu.br:8080/jspui/handle/tede/628

With so many prerogatives assured on the constitutional level with the status of fundamental ones, a few appear, especially for the purposes of the present study, the right to health, the reasonable period of the process and the guarantee to access to justice in order to, combined with the phenomenon of judicialization of health, making it noticeable, in effect, an outlook of normative, political and social relevance which permeate the characteristics of the complexity and the up-to-dateness of the alluded issue. They are, thus, factors which justify an approach, in a doctoral thesis, of the so-referred object then enabling the general explanation of its outlines and critical notes of the aspects involving the theme. Therefore, the thesis tried to emphasize the legal factors surrounding the issue. Yet, not separated from the social and political focus which establish, ultimately, the guarantee of the right to health according to the Federal Constitution. Added to such topics, the stormy situation of the slowness of justice and the establishing of rights, relating them to the continuous search from the legislator to create mechanisms of procedural nature to assure the appropriate service of the premise of reasonable period of time of the process such as the case of preferential procedures to the elderly and severely ill people, and subject to the procedures printed in the Senior Citizens’ Statute, as well as the subjects entangled to the normative discipline relating to the Statute of the Child and the Adolescent. As a verification instrument of the effectiveness of the legal provision which concedes differentiated procedural steps to the judicial proceedings in the circumstances indicated above, an investigation is made of health legal demands which are under way in the State Court, Court of Pelotas, analyzing the procedural handling given in these cases. In order to do so, ongoing judicial proceedings are checked and the necessary information is collected for the proposed analysis which are the following: distribution date of the processes, date of the first judicial statement, verification of the granting or denial of the wished anticipation of tutelage and its principles, verification of the elapsed time between the first judicial statement the realization of the judicial protection. Based on the information collected, we checked, in actions with special procedure, as well as in the others, the effectiveness of the judicial protection linked to the right to health especially in the light of the elapsed time for its realization, assessing effectively, the reasonable period of time of the procedure. Then the aim is to carefully look at the civil procedural law as a public policy instrument, check the effectiveness of the fundamental right to the reasonable period of time of the process, identify the effectiveness of the legal provision of preferential proceeding of the processes and, yet, investigate the effectiveness of the jurisdictional tutelage of health processes. To conclude, we identify the absence of any favorable impact to the quickest procedural steps in the cases subject to preferential procedural steps. A large interregnum is noticed between the granting of the measure of anticipation of health regulation and the effectiveness of the pretension to the jurisdiction with blatant disrespect to the preferential procedural steps assured by the article 1048, CPC/2015 (art. 1211-A, CPC/1973). It is also true that it is possible to notice a considerable political aspect and impact of the judicial process especially when facing the issue of the health judicialization.