THE IMPLEMENTATION OF THE RIGHT TO HEALTH FOR ELDERLY PEOPLE: BETWEEN STATE OMISSION AND THE ACTION OF THE JUDICIARY

Abstract

The enactment of the Elderly Statute, through Law No. 10,741, in 2003, marked an important step forward in the consolidation of the rights of older adults in Brazil. This legal framework was the result of a long process of debate and mobilization by various sectors of civil society, which sought more concrete solutions to the challenges faced by this segment of the population. Although the 1988 Federal Constitution already provided for a series of rights aimed at protecting older adults, it was with the Statute that more specific and detailed mechanisms were established, focusing on promoting dignity, improving quality of life, and ensuring the social inclusion of older adults.

Among the guaranteed rights, the right to health stands out, considered a priority duty of the State. The legislation stipulates that older adults must receive comprehensive care, with free access to long-term medications, specialized services, and even home care when necessary. However, the practical implementation of these guarantees remains compromised by structural and administrative limitations of the public health system, marked by scarce resources, deficient oversight, and the absence of effective public policies aimed at this segment of the population.

In this context, the accelerated aging of Brazilian society poses growing challenges to public administration, which often proves incapable of guaranteeing, through institutional means, the rights enshrined in law. This gap in state action has contributed to the strengthening of the Judiciary's role as a decisive body in protecting the elderly's right to health. Judicialization, in these cases, not only emerges as an instrument for access to justice but also consolidates itself as a means of addressing the State's omissions, ensuring the fulfillment of urgent demands and respect for human dignity.

However, this leading role of the Judiciary raises important reflections on the limits of the separation of powers, the effectiveness of public policies, and the risks of inequality in access to social rights. Although much progress has been achieved through judicial decisions, the reliance on the judicial system to enforce fundamental rights indicates a partial failure of the state's role in its original role as an executor of public policies.

Given this scenario, this study aims to answer the following question: How has the Judiciary acted to guarantee the right to health care for older adults in the face of the State's omissions and failures in implementing the guidelines set forth in the Elderly Statute? The study seeks to understand the limits and possibilities of the judicialization of health care as a mechanism for enforcing fundamental rights in contemporary Brazil, with an emphasis on a critical analysis of the State's responsibility in fulfilling these guarantees. In this context, it is no exaggeration to argue or raise the hypothesis that the Judiciary's action has proven essential for enforcing the right to health care for older adults in cases of State omission.

1.1 OBJECTIVES
1.1.1 General Objective

To analyze the role of the Judiciary as a guarantor of the right to health for older adults in the face of State failures or omissions in implementing public policies established in the Elderly Statute.

1.1.2 Specific Objectives
To examine the legal and social context that motivated the creation of the Elderly Statute, focusing on consolidating the right to health as a fundamental right.
To identify the State's obligations within the scope of public health policies aimed at the elderly population and the main obstacles to their effective implementation.
To investigate how the Judiciary's actions have remedied State omissions in realizing the right to health for older adults, especially in decisions involving the provision of medication, hospitalizations, and specialized treatments.
To analyze the limits and possibilities of the judicialization of health as a mechanism for realizing fundamental rights in the context of population aging.