A confidencialidade entre médicos e pacientes maiores de 16 anos e menores de 18 anos á luz do direito brasileiro atual

Abstract

This article proposes an analysis of how the relationship of confidentiality between doctors and patients over 16 and under 18 will be given, in the light of current Brazilian law, observing the need to guarantee the constitutional rights of these relatively incapable minors in the legal system , as well as demonstrating the insufficiency of the capacity theory set out in the Civil Code. In this context, the methodology adopted was bibliographic research, in which it can be seen that due to the lack of specific legislation that addresses on whether or not these patients hold decision powers, and consequently the maintenance or not of confidentiality, generates legal uncertainty for doctors who don’t know how to proceed in these cases, as verified through the analysis of the opinions of the Regional Councils of Medicine on the subject. In this way, also analyzing the role of the parents and legal guardians of these minors, it will be seen that despite the existence of the legal duty of protection, the will of the child under 16 and over 18 must have a significant role at the time of decision making , given the guarantee of their constitutional rights through the concept of progressive autonomy. Having demonstrated all these aspects, it is suggested the adoption of the theory of mature minors in conjunction with the proposal of bioethical adulthood as a way of guaranteeing legal security for doctors and the inviolability of adolescent confidentiality.