A confidencialidade entre médicos e pacientes maiores de 16 anos e menores de 18 anos á luz do direito brasileiro atual
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Date
2020-12-11
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Universidade Católica do Salvador
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.
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Keywords
Confidencialidade, Autonomia, Relativamente incapaz, Direito médico, Confidentiality, Autonomy, Relatively unable, Medical law