Banca de DEFESA: ANA PAULA VIEIRA FERNANDES

Uma banca de DEFESA de MESTRADO foi cadastrada pelo programa.
STUDENT : ANA PAULA VIEIRA FERNANDES
DATE: 10/02/2026
TIME: 10:01
LOCAL: Sala do Núcleo Setorial e Regulatório da Faculdade de Direito
TITLE:

Responsibility of Federative Entities in the Context of the Judicialization of Healthcare: Solidarity or Subsidiarity? An Analysis of STF Themes 793 and 1234

KEY WORDS:

judicialization of health; federal powers; SUS; solidarity; subsidiarity

PAGES: 100
BIG AREA: Ciências Sociais Aplicadas
AREA: Direito
SUMMARY:

The constitutionalization of the right to health, the consolidation of the legal framework of the Brazilian Unified Health System (Sistema Único de Saúde – SUS) and its structuring within Brazilian cooperative federalism—whose responsibilities and funding are shared among the Federal Government, States, and Municipalities—together with increased public awareness of these rights, constitute some of the main causes of the judicialization of the right to health in Brazil. Pursuant to Article 23, item II, of the Federal Constitution, the duty to implement public policies is incumbent upon all three levels of government. This provision establishes the shared competence of the federative entities to act in the provision of health care in a coordinated and parallel manner, which is characteristic of cooperative federalism. Such action is to be carried out through a unified system that is regionalized, decentralized, and hierarchical, as provided in Article 198 of the Constitution. This constitutional arrangement has given rise to numerous uncertainties in its implementation, particularly regarding the type of liability that should apply among the federative entities—whether joint and several (solidary), subsidiary, or a combination of both. Nevertheless, the thesis of solidarity within the scope of the SUS, which prevailed for many years in the jurisprudence of the Federal Supreme Court (STF), can only be properly understood as cooperative and collaborative responsibility. Brazil adopts a federal form of state, which presupposes political decentralization, with power distributed among multiple centers through constitutionally defined competences. Allowing any health-related obligation to be demanded from any federative entity at the discretion of the claimant results in a re-centralization of responsibility and, consequently, undermines the federalist structure. It is therefore essential to consider that federative entities must assume obligations compatible with their demographic size, socioeconomic conditions, geographic characteristics, and epidemiological profile, in order to reduce—rather than exacerbate—federative inequalities. The recognition of general repercussion regarding the existence or non-existence of joint and several liability among federative entities for the provision of health care, in Extraordinary Appeal (RE) No. 855,178 (Theme 793) in 2015, represented a significant step toward improving the Judiciary’s handling of public health litigation, given both the relevance of the issue and the substantial number of cases concerning solidary liability pending before the STF. Subsequently, the adjudication of the motions for clarification in May 2019 led to a shift in the previously established thesis concerning solidarity among federative entities in health-related claims, which will be examined in this study. More recently, the judgment of General Repercussion Theme No. 1234, through the ratification of inter-federative agreements in September 2024, once again altered the legal paradigm of federative solidarity in health care in Brazil. Together with the enactment of Binding Precedents (Súmulas Vinculantes) Nos. 60 and 61, this development evidenced the predominance of subsidiary liability grounded in SUS legislation, as well as the primacy of administrative discretion in the selection of public policies over judicial decision-making. From the perspective of reducing judicialization, this shift appears to represent a significant institutional advancement. The importance of re-signifying the paradigm of solidarity is of interest to all stakeholders, particularly the Judiciary, as it enables ordinary courts to achieve a higher degree of predictability regarding the scope of their own competences and to issue more precise and effective judicial commands, thereby reducing litigation among federative entities (including fewer regressive claims, such as the phenomenon commonly referred to as the “judicialization of judiciali

COMMITTEE MEMBERS:
Interno - 2332291 - ALEXANDRE ARAUJO COSTA
Interna - 2279451 - ANA CLAUDIA FARRANHA SANTANA
Externo à Instituição - GILMAR FERREIRA MENDES - IDP
Interno - ***.328.618-** - MURILO BORSIO BATAGLIA - UnB