Ação Direta de Inconstitucionalidade nº 5.779: a preponderância da efetividade do direito à saúde sobre a hierarquia das normas jurídicas

Objective: To reflect on whether the hierarchy of legal norms should be used as an infallible method of solution even when an apparent conflict between legal norms involving health law can be better resolved through a technical decision by the competent regulatory agency. Methodology: data was collected. In particular, Resolução de Diretoria Colegiada nº 52/2011, Law nº 13.454/2017 and Ação Direta de Inconstitucionalidade nº 5.779-DF. Specialized legal doctrine was sought on the central and peripheral themes. The data collected was analyzed using the critical-narrative review technique. Results: In Brazil, the adoption of regulatory agencies as normative agents and regulators of economic activities has made it possible to make decisions based less on political criteria than on technical criteria. The legislator, anchored in political criteria, according to the judiciary, cannot go beyond technical criteria. Conclusion: the judgment in Ação Direta de Inconstitucionalidade nº 5.779 shows that today's concept and the legal nature of the right to health impose new legal paradigms that validate the role of regulatory agencies (making technical decisions in favor of maximum effectiveness of the right to health), even to the detriment of politically legitimized decisions by the legislature. The formal paradigm cannot prevent the materialization of the right. Submission: 03/18/24| Review: 08/16/24| Approval: 08/16/24