Preventive habeas corpus: the heroic remedy to protect the right to health

o remédio heroico para tutela do direito à saúde

Abstract

With the persistent omission of the Union in regulating the cultivation, production, and transportation of cannabis for medicinal purposes, the Superior Court of Justice has established the understanding of the appropriateness of preventive habeas corpus to protect the fundamental right to health of patients who cultivate cannabis for the treatment of their illnesses, in the face of unsuccessful attempts at clinical improvement with conventional medications. Initially, the Superior Court's understanding was that this constitutional remedy was not applicable, as it believed that the competence for this matter belonged to the civil and administrative sphere. However, the longstanding controversy over the Union's duty to regulate the sole paragraph of Article 2 of Law 11.343/2006 (National System of Public Policies on Drugs – Sisnad), due to the disagreement between the Ministry of Health and ANVISA in not defining their competencies in this regulation, along with repeated petitions for writs of habeas corpus, led the Superior Court of Justice to establish new jurisprudence in order to preserve judicial self-restraint in the criminal field. Thus, the filing of habeas corpus is the appropriate measure to exclude penal typicity regarding the act of cultivating cannabis for medicinal purposes, provided that the medical need for treatment is proven. This aims to avoid criminalizing individuals seeking their fundamental right to health and burdening them with bureaucracy and the high cost of medication, allowing patients or their caregivers to cultivate and produce cannabis-based medications artisanally without the risk of constraint and loss of freedom.