ABSTRACT
A requisição de prontuários médicos para a instrução de inquéritos policiais, procedimentos administrativos e processos judiciais é uma realidade no Brasil e desperta inúmeras dúvidas. Este artigo visa, à luz da legislação e da jurisprudência brasileira, trazer alguns esclarecimentos sobre o tema, sem a pretensão de exauri-lo.
The request medical records for the instruction of criminal investigations, administrative and judicial proceedings is a reality in Brazil and arouses many questions. This article aims, in the light of the legislation and case law, bring some clarification on the subject, with no claim to exhaust it.
La solicitud de registros médicos para la instrucción de las investigaciones policiales, los procedimientos administrativos y judiciales es una realidad en Brasil y suscita muchas preguntas. Este artículo tiene como objetivo, a la luz de la legislación y la jurisprudencia brasileña, trae algunas aclaraciones sobre el tema, sin pretensión de agotarlo.
ABSTRACT
The first half of this article deals with the concept of informed consent. There are three important elements in practice. First, the consent must be specific as to the proposed intervention. Second, sufficient information must be provided so that a patient can fully understand the matter. For the criterion of sufficiency, this article proposes what might be called as 'the hypothetical self-test' with which physicians can self-evaluate the sufficiency of the information that they provide to the patient. Third, the consent must be given in a fashion to meet the patients' intellectual capabilities. In case the patient is not intellectual enough incapable, the consent, which is still required, can be obtained from a substitute decision maker. This article also suggests patients to prepare advanced directives when they are still competent, so as to avoid having their family members be left with moral quandaries of making the life with moral quandaries of making the life-and-death decision. The second half of this article deals with medical confidentiality. Why should a physician keep the medical record confidential? First, if the physician fails to keep medical confidentiality, hardly can trust be built between physicians and patients. Second, once the trust breaks down, physicians would face difficulties in taking the patients' medical histories, which are crucial to the diagnosis of the patient, because the patients obviously are reluctant to give information in that setting. Third, each individual should have control over information about him/herself. This article concludes with cataloging seven circumstances in which medical confidentiality is excused. (237 words).