The lawsuits against Health Surveillance: can one speak of 'judicialization'?

Simões, Aliana Ferreira de Souza; Souza, Luis Eugênio Portela Fernandes de

doi:10.1590/0103-11042018S205

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ORIGINAL ARTICLE • Saúde debate 42 (spe2) • Oct 2018 • https://doi.org/10.1590/0103-11042018S205 copy

The lawsuits against Health Surveillance: can one speak of 'judicialization'?

Authorship SCIMAGO INSTITUTIONS RANKINGS

ABSTRACT

The objective of this study is to analyze the lawsuits filed against a municipal Health Surveillance service, in the light of the phenomenon of health judicialization. It is a case study that had as documentary source the judicial processes related to Health Surveillance of the municipality of Salvador, from 2000 to 2017. Fifty actions were analyzed, 90% of which were in the form of injunctions, 28% reported the presence of tax debts as the main object of discussion and 72% requested the granting of the health permit, which was granted in most decisions. It was evidenced that the particular economic interest pervades the motivations, the arguments and the reasoning of the authors, as well as the basis of the decisions and sentences. The results indicate that one cannot speak of 'judicialization of the Health Surveillance service', in the sense that the Judiciary branch of the government is assuming some protagonism in the definition of Health Surveillance actions. In addition, they indicate that it is necessary to restructure the Health Surveillance way of working, in order to provide administrative alternatives for the resolution of conflicts.

KEYWORDS
Sanitary Surveillance; Judicial decisions; Judicialization of health; Right to health

Procedural characteristics	N	(%)
Result of lawsuits in preliminary decision	32	64
Favorable to author	24	75
Favorable to Visa	8	25
Result of actions in judgment	28	56
Well-founded	9	32,2
Partially well-founded	1	3,6
Unfounded	12	42,8
Dismissal of the process	6	21,4
Time of Decision and Judgment (n=50)
Before Visa's contestation	22	44
After Visa's contestation	26	52
No contestation from Visa	02	4
Conduct of proceedings (n=50)
With preliminary decision	14	28
With sentence	28	56
No decision or judgement	08	16
Appeals	17	34
1st Instance	03	17,6
2nd Instance	11	64,7
STJ^* * Superior Court of Justice (STJ). e STF^ Federal Supreme Court (STF).	03	17,6

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[TFN3] ^*
Superior Court of Justice (STJ).

[TFN4] ^**
Federal Supreme Court (STF).

Aspects of the health practice	Disagreement of the author with respect to the acts practiced by the Health Surveillance	Seizure of products, with prohibition of commercialization and/or disposal.
		Operation of another establishment licensed by Visa, but which, for the author, works in an irregular manner, compromising, moreover, its billing or causing economic losses.
		Prohibition of exposure and commercialization of products because they are divergent from the authorized activity.
		Withdrawal of anodyne drugs from internal shelves in establishments not authorized to market medicinal products.
		Interdiction of establishment and/or equipment.
		Prohibition of remote sale of drugs subject to special control.
		Excesses practiced by the professionals who carried out the inspection, characterizing abuse of power.
	Disagreement of the author with respect to the measures adopted by Visa in the situations	Refusal of health licensing for the optometry segment.
		Refusal of the application for licensing because the establishment does not meet the minimum distancing (between drugstores and pharmacies) required by the Municipal Law nº 5.504/1999 (Art. 92).
		Non-acceptance of the technical person declared by the company because he has a formation that is different from that required by the Municipal Law nº 5.504/1999 (Art. 80).
		Performance of the Visa on the physical structure of the environment and health of the worker, which the author claims to be an extrapolation of the attributions of the body.
Organizational aspects	Alleges that there was delays in the Public Administration in complying with the permit application of the establishment	After five months of the license application and after a formal request on the progress of the process, a statement was issued that the proceeding was in progress.
		Establishment for 12 months awaiting final opinion on the health licensing process.
		After 16 months, with successive issuances of notifications and extensions of term, the licensing process was not completed, but only issued statement that it is in process.
		After two months of the request for licensing without inspection and after successive attempts to obtain information about the progress of the process, he/she is informed that its object of demand was sent to the opinion of the Office of the General Prosecutor of the Municipality of Salvador (PGMS).
Administrative or bureaucratic aspects	The author alleges that there was a refusal to file a license application or the request was denied for lack of documents.	Negative Certificate of Debits (CND).
		Certificate of Technical Responsibility (CRT).
		Proof of payment of the annuity of the company with the class council.
		Operating permit issued by the Treasury Office (Sefaz) of the municipality.
	Alleges that Visa does not have a formal and established mechanism for the resolution of conflicts or disputes within the administrative sphere.	Absence of formal manifestation of the Visa, with the denial of the request verbally informed.
	Alleges omission of the Visa in attempts to clarify the progress of the licensing processes, as well as the conduct adopted.	Report that Visa does not issue any document proving the denials of filing documents and/or requests.
		Administrative request filed, however, with no reply.
		Absence of an opinion that presents or not approval of the license application.