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With the enactment of the current Federal Constitution (1988), important fundamental rights and guarantees were granted and promoted by the State with the mandate to assist and preserve a dignified and isomeric existence for the citizens. In this way, social rights have gained significant relevance because they are closely linked to the ideals of equality and the existential minimum that an individual needs. The role of the right to health, as a fundamental social right, draws a new scenario for public health, since it promotes the expansion of the responsibilities and coverage of the services assured, from then on, in a universal and independent contribution. The new constitutional provisions allow for the provision of the service through public health care (SUS Sistema Único de Saúde), provided by state entities directly or indirectly, and supplementary care by the private sector (SSAM). However, each system (SUS and SSAM) for political, economic, social and legal reasons, among others, presents peculiarities and differences that often result in the contemplation of privileges, only, for a portion of the population, usually assisted by the provision of the health through private initiative (SSAM). In the analysis of this configuration, among the many differences that stand out among the health systems that presents the most paradoxical, under the prism of the law, is the permission of the most protective law enforcement, the CDC, only, to the users of the system additional. This discredit, directed to the users of the public system, besides generating serious affront to the principle of isonomy, limits the achievement of guaranteed rights in the CF and suppress legal instrument that would help these vulnerable to vindicate any damages that would suffer as users of the service health public. Objective: The objective of this study is to verify the protective legislation applied to public health service users, in order to meet their needs, while vulnerable and hypo sufficient. Foster discussion and criticism about the current interpretation of the legal system, which has made it possible to apply a more protective standard only to users of the health system provided by private initiative. As a specific objective to present arguments based on the law, doctrine and jurisprudence that justify the application of the CDC as a protective diploma to the users of the public health service, in the same way applied to the users of the private system, thus allowing the use of greater legal safeguards those users, as well as ensuring the achievement of the rights and guarantees provided in the constitutional text. Method: A survey of works directly and indirectly related to the subject was carried out, the means applied included the literature review, with an exploratory and descriptive study, developed from researches in existing literature in the national literature that addressed the right to health, structure and organization of health services in Brazil, standardization applied to both systems, public services, as well as the application of the CDC as a protective diploma to health service users of both systems. The theoretical basis was the federal constitution, consumer protection code, sparse legislations, doctrine and jurisprudence relevant to the area of constitutional, administrative and civil law, with the promotion of Brazilian legislation. The databases Pubmed, Scielo, LILACS, Dedalus, Google Scholar, Google and Courts of Justice were used, with the combination of the key words described below. It is considered at the end that, there is no specific protective legislation for the users of the public health service. Conclusions:Through this gap, the application of the CDC will prove to be the most feasible measure to comply with the principle of equality and ensure the achievement of rights and guarantees, provided for in the constitutional text, to final recipients of the public health service.

A aplicação de diploma legal mais protetivo aos usuários do serviço público de saúde como meio de assegurar a consecução de direitos e garantias constitucionais