The utilitarian idea and its acceptance in health judicialization

Abstract

The idea of utilitarianism was born of the need for law to be linked to social welfare. Because of this ideal of collectivity and the need for collective well-being to be superior to the individual, it became imperative to apply utilitarianism both in the philosophical field and in the legal field. Thus, it is possible to correlate the idea of utilitarian thinking in the application of the laws inherent to the right to health, which, although constitutionally foreseen and to be social and fundamental right, as well as one of the foundations for individual and collective social well-being, the impossibility financial system of universal and unrestricted provision by the State, caused two phenomena to occur in Brazilian society: economic exploitation of health and judicialization. The first is precisely the increase in the demand for private health services. The judicialization of health is a phenomenon due to the unbridled increase in demands involving issues related to the right to health, especially in public health, emerging by its constitutional guarantee. Faced with this reality and the impossibility of effectively guaranteeing the right to health, the Judiciary, especially in the figure of the National Council of Justice, thought of utilitarian ideals in the demands involving health rights, precisely because of the primacy of the public interest to the detriment of as well as the need to optimize the allocation of the public resource. The application of these ideals in demands involving the right of health is clearly seen in recent decisions, where the convenience of the public interest, the reserve of the possible and the economic analysis of the right to the detriment of the individual interest is verified.