The omission from the perspective of orthotanasia, mistanasia, and allocation of scarce resources in health

• Grant number: 14/24675-0
• Support Opportunities: Scholarships in Brazil - Scientific Initiation
• Start date: February 01, 2015
• End date: January 31, 2016
• Field of knowledge: Applied Social Sciences - Law - Public Law
• Principal Investigator: Eduardo Saad Diniz
• Grantee: Isabela de Andréa Sherman Palmer
• Host Institution: Faculdade de Direito de Ribeirão Preto (FDRP). Universidade de São Paulo (USP). Ribeirão Preto , SP, Brazil

Abstract

The duty of medical care is based primarily on the principle of beneficence, which arises from the position of a health professional, which requires knowledge that can benefit the health and life of humans, thus configuring a duty to act for the benefit of others, while not causing him harm. But this precept is constantly confronted in medical hospital environment and the dynamics of the doctor-patient relationship, where one can observe several situations where the act or omission may result in criminal penalties. In situations of mistanasia, emergency care in hospitals in various configurations can produce a picture of conflict between the treatment and the possibility of its performance not to happen, for reasons beyond the control of the patient. In this perspective, the individual loses the ability to self-determination over his fate, being a hostage of the circumstances. In cases of passive euthanasia, orthothanasia in a divergent situation, the patient chooses to discontinue his treatment, aiming for the resulting death, often because of the severity of his illness, the pain that it causes to him or the impossibility of cure. This research finds its definition in the differentiation of the analysis of criminal relevance of the omissive conduct from these two different perspectives, being observed also an important variable in the set up of these situations, the problem of allocation of health resources, which can increase or decrease the criminal responsibility on the doctor or hospital. Therefore, the research is divided into a restricted area, referring to the power of choice, duty and desire of each subject, and a wider scope, concerning this context of allocation of scarce resources in health and egalitarian justice. (AU)