A aplicação da teoria dos processos estruturais nas demandas judiciais sobre saúde pública e as ferramentas correlatas de atuação da Procuradoria Geral do Estado do Tocantins

Abstract

The judicialization of health is discussed as a response to the lack of effectiveness of public policies, facing criticism related to the lack of legitimacy of judges to allocate public resources and the financial and political impacts of judicial decisions, among others. In this context, the structural process is seen as a more adequate approach to deal with structural health disputes, since the Brazilian procedural system has been showing concern with the multipolarity and complexity of the conflicts brought to court, in such a way that their solution conforms to a prospective character and in accordance with constitutional dictates, in an attempt to overcome an individualistic and linear model of legal protection. The present text, initially, discusses the differentiation between global, local and irradiated collective litigation, highlighting the relevance of this distinction for procedural issues, such as active legitimacy to file collective actions. Then, the focus is on the collective process as a tool to protect collective disputes, although it is not the only available option, since the judicialization of individual demands on public policies can impair the efficiency of the judicial provision, leading to contradictory and incomplete judgments. The text also explores structural disputes, which arise from complex violations in bureaucratic structures, public or private, and are often not completely resolved by simply removing the violation, as they involve multiple poles with intertwined interests. It is thus noted that there is a need for judicial action to promote a restructuring of the public entity, for example, which demands time and continuous monitoring: this is where the so-called structural process comes in, within which a litigation will be composed structural, aiming at solving a structural problem and the state of non-compliance brought in judgment, in order to reach, as much as possible, an ideal state of affairs. In this vein, the present dissertation aims to study the characteristics of a problem, litigation and structural process, so that, based on these concepts, the performance of the Procuradoria Geral do Estado do Tocantins is optimized, in particular the judicial nucleus that takes care of demands involving the right to health, through the elaboration of a manual that helps in the identification of structural actions in this area, and suggestions for managing them, in order to enhance the efficiency of the body's judicial and, also, extrajudicial action, breaking, thus, the practice of a purely defensive action, in search, therefore, of a constructive action of effective solutions for the structural problems in the field of public health. It is also noteworthy that the creation of the Deputy Attorney of the Chamber for the Prevention and Administrative Resolution of Conflicts is seen as an institutional advance, seeking mediation and conciliation as alternatives to judicialization. In short, the importance of the PGE's proactive and strategic performance in facing structural health disputes and demands related to public policies, seeking more comprehensive and effective solutions for the systemic problems that affect the effectiveness of these fundamental rights, is emphasized.