O consentimento presumido no direito penal médico: elementos essenciais da causa de justificação diante de diretivas antecipadas de vontade

Abstract

This dissertation investigates the dogmatic elements required for the validity of presumed consent as a ground of justification in Medical Criminal Law, particularly in emergency situations and in the presence of advance directives of will. It is based on the recognition of personal autonomy as a constitutional foundation for the legitimacy of medical interventions, within the context of overcoming the paternalistic model of the doctor–patient relationship. The research problem consists of identifying the requirements that must be met for a medical intervention performed without the patient’s current expression of will to be considered legally justified. A legal-descriptive method is employed, with a dogmatic analysis of the theory of crime, national and foreign criminal law scholarship, and recent decisions of the Brazilian Supreme Federal Court. Initially, the study examines the distinction between agreement and consent in Criminal Law, as well as the dogmatic treatment of consent as a ground for excluding typicity and unlawfulness. It then analyzes presumed consent as a ground of justification, distinguishing it from the state of necessity and hypothetical consent. After a brief examination of advance directives as forms of prior expression of consent, it concludes that presumed consent constitutes an appropriate instrument for protecting patient autonomy when real consent cannot be obtained, provided that requirements such as the impossibility of current manifestation, the urgency of the intervention, the existence of objective elements of previously expressed will, and medical conduct aligned with the patient’s interests are met. Furthermore, consent must be grounded in a comprehensive duty of medical disclosure, respecting the most recent expression made by a factually capable individual when externalizing consent, even if informally. The study contributes to the dogmatic consolidation of the institute in Brazilian Criminal Law and to the strengthening of legal certainty in medical practice.