Decretação de lockdown pela via judicial: medida (des)necessária?

Abstract

The Brazilian Constitutional definition of health as a social right makes the State the guarantor of this legally protected interest. The federalist system adopted in the 1988 Brazilian Federal Constitution determines that the Federal Government, states, and municipalities share the authority to care for health and the concurrent authority to legislate on health matters. This shared authority is based especially on the model of decentralization of public actions and services in health and the regional disparities across Brazil's territory. As Brazil has confronted the COVID-19 pandemic, this heterogeneity has intensified, allowing the Federative Units to adopt different measures that limit rights and public freedoms, depending on the pandemic's progression in the respective geographic area. The range of autonomy for these government entities was recently reaffirmed by the Brazilian Supreme Court (STF) with its ruling on Direct Unconstitutionality Suit n. 6,341/2020 1. The Supreme Court's ruling reinforced the role of local health authorities and public administrators in the adoption of legislative and administrative measures against COVID-19. Each branch of government in Brazil performs its respective role. Since the COVID-19 public health emergency of national concern was declared by the Ministry of Health 2 , extensive legislation has been produced by the Federal Executive and Legislative Branches (Portal da Legislação. Legislação COVID-19. http://www4.planalto.gov.br/legislacao/portal-legis/legislacao-covid-19, accessed on 16/May/2020), not only in health, but also including economic and tax issues, social security, services provision, and individual rights and guarantees, among others. States and municipalities have also contributed to the creation of a new legal framework. The clash between fundamental rights, the exercise of public freedoms, and respect for restrictive rules and confinement, with the aim of drawing limits between the development of administrative rules, jurisprudence on the protection of (and guaranteed access to) health, and the possibility of exercising individual autonomy have been the object of analysis by the Brazilian academic community 3. This scenario provides the backdrop for the first declaration of a lockdown in Brazil, in the cities of São Luís, São José de Ribamar, Paço do Lumiar, and Raposa, all located in the state of Maranhão, under a court order issued on April 30, 2020. The order responded to a claim filed by the local Public Prosecutor, based on the following factors 4 : total occupation of ICU beds dedicated exclusively to COVID-19 in the state public healthcare network; lack of transparency of this same information in the public networks in the above-mentioned cities; provision for lockdown in the Ministry of Health's

Covid-19 no Brasil: cenários epidemiológicos e vigilância em saúde

“…Diante da fragilidade e fragmentação dos Sistemas de Informação em Saúde (SIS) nacionais e da falta de uma solução de registro eletrônico em saúde nacionalmente padronizada (Ferré, 2021), novas soluções precisaram ser desenvolvidas de forma emergencial para atender à demanda de monitoramento e avaliação da pandemia. Os papéis institucionais em relação à Covid-19 não foram normatizados de forma célere em consenso tripartite e entre os três poderes, especialmente quanto ao manejo da contenção do vírus e à tipificação das medidas de restrição e definição de estabelecimentos não essenciais que deveriam fechar as portas durante o processo que se chamou de lockdown (Alves, Ramos & Delduque, 2020). Cada ente federativo passou a lidar com a pandemia a seu modo, incluindo a relação com a mídia e redes sociais.…”

Delay in death reporting affects timely monitoring and modeling of the COVID-19 pandemic

“…Difficulty in obtaining properly updated data on mortality can hinder decision making, increasing the likelihood that disease control actions will not be implemented at the most opportune times. After court order, São Luís enforced the lockdown from May 5 to 17, 2020, motivated, among other factors, by the high and growing number of deaths by COVID-19 recorded in the city 21 . The analysis of deaths by occurrence date shows that the start of the lockdown coincided with the peak of deaths, registering a decline in the following week.…”

Judicialization of administrative measures to tackle the COVID-19 pandemic in Brazil

“…The urgency triggered by the pandemic led the Judiciary to become the protagonist of restrictive measures, such as the unprecedented decision, which determined that the Maranhão State government should declare lockdown, based on the constitutional recognition of health as a fundamental social right (TJMA, 2020), and imposing a series of obligations on the defendants, without knowing whether the local political agents would be possible to organize and support these obligations (Alves, Ramos, Delduque, 2020).…”