Judicial decisions in healthcare, a propitious field to the interference of personal beliefs of each judge: analysis of the jurisprudence of four courts

Abstract

Since the expansion of the phenomenon of health judicialization, judges have assumed an important role in the consolidation of the right to healthcare in Brazil. In this context, magistrates from all levels of the Brazilian judiciary system are faced with unusual issues inherent to assuring effective access to health services, which has led in some cases to different positions and intense discussions in state and federal Brazilian courts. Some public health issues taken daily to the judges assessment, in fact, generate intense controversies that do not arise froma simple opposition of interests between government and the particular claimant, but by the fact that the magistrate, when deciding, is strongly influenced by his or her own moral principles, and will not always feel “comfortable” in adopting the solution suggested by simple law enforcement. These are situations in which judges end up deciding more according to their personal convictions, their sensitivity as human beings to the pain and suffering ofothers, than to their technical-legal knowledge. The objective of this study is to verify how  questions of this nature have been confronted and decided in the jurisprudence of four state courts of law in Brazil.