Natureza, validade e interpretação do consentimento informado, e sua correlação com a autodeterminação do paciente

Abstract

The pursuit of the legal nature of consent to the medical act is the impetus for a revision of the theory of the legal act, and its consequent juridical repercussions, this being the core of the subject to be developed. The general objective of the thesis is to investigate the legal nature of informed consent, having as hypotheses that it is a mere fact; a legal act in the strict sense; a legal business or a new category within the theory of legal fact. Thus, the thesis has as specific objectives several other aspects that touch on the direct subject, that with it are interrelated and that compose the different parts of the text, which are: (a) the concepts of legal act stricto sensu e legal business, similarities and differences between the two, the practical relevance of this analysis, as well as (b) their contours in the planes of existence, validity and effectiveness. Likewise, they contemplate (c) the analysis of the will in the statement contained in the informed consent or in the patient's conclusive behavior and eventual defects, the content and function of the information in the informed consent material process, and (d) the investigation in relation to its manner of constitution, interpretation and validity. Considering these aspects, it permeates the text by the existential legal business and the conditions of availability of personality rights. From this scenario, it is verified that the theory of the legal fact remains current, although it must be adapted in some aspects (notably in the concept of legal act stricto sensu and legal business) to accommodate new juridic facts. It is observed that the consent to the medical act is an existential legal business, which has specific contours and that includes a chain that begins with the transmission of information to the patient, its reception, maturation, the decision process and culminates with the authorization itself. It is perceived that the physician has primary and secondary duties to observe, which are essential to the validity of informed consent, although they do not affect the plane of existence. It is found that informed consent is subject to compliance with good medical practice, the principles of bioethical ethics, good faith, and principles arising from the very nature of the act (in the broad sense), and subject to an adapted manner of interpretation when compared to that traditionally applied to the contract.