Criminal Liability for Violation of Informed Consent in Macao

English Text | Iong Man Teng
Photo | Editorial Board

Informed consent is an essential ethical and legal requirement for medical interventions or treatments, which guarantees respect for patients as human beings1. It is a requirement of the lawfulness of medical activities, which are unlawful when a patient’s right to self-decision is violated2. Hence, it is very important that doctors or other legally authorised persons know when and how to obtain informed consent from their patient, in order to avoid its violation and, as a result, criminal liability3.

According to the Macao Penal Code, doctors or legally authorised persons who perform interventions or treatments intended to prevent, diagnose, remedy or alleviate disease, suffering, injury, fatigue, or mental disorder, without patient consent, may be punished with imprisonment up to three years or a fine (article 144 and article 150/14). The mentioned ‘patient consent’
is only effective when the patient has been adequately clarified about the diagnosis, and the nature, scope, extent, and possible consequences of intervention or treatment, unless it implies a communication of circumstances which, if known by the patient, would endanger his/her life or would be likely to cause serious harm to his/her physical or mental health5 (article 151). This is the reason why informed consent has been known as a concept which requires two components, comprehension and free consent, where the first one includes provisions of information and understanding6.

 

 

As stated in article 150, doctors or legally authorised persons should be held criminally responsible even though there is no harm caused to their patients. For this reason, it must be clarified that the protected legal interest is not physical integrity, but human dignity, contrary to what occurs in article 144.

The term ‘doctors or legally authorised persons’ mentioned above alludes to the persons who have technical qualifications and legal authorisation, where the first one requires an adequate preparation to perform medical acts (such as courses, practices, etc.) while the second one requires accreditation for the exercise of medical acts (such as registration in a professional organisation)7. In Macao, the entity that issues legal authorisation for the exercise of medical acts is the Macao Health Bureau. Given the existing difference between medicine programmes in many countries and regions, a committee of the MacaoHealth Bureau is responsible for analysing whether the courses can be considered adequate for legal authorisation, namely whether the courses comply with the pre‑defined criteria of accreditation8.

On the other hand, it should be clear that article150 should not be applied in a situation where a person, who is not a doctor or legally authorised person, practices medical activities without the patient’s effective consent, or in a situation where the medical acts, although practiced by a doctor or legally authorised person, are not destined to therapeutic purposes. For the first situation, the person may commit a crime regarding an illegal practice of profession in line with article 3229, while the second situation should be considered a crime of offence to physical integrity in accordance with article 144.

However, there are some situations in which informed consent is not required for the exercise of medical acts.The first situation involves urgent medical interventions or treatments whose delay implies danger to life or serious danger to body or health (article 150/2/a). In this situation, the doctor or legally authorised person should analyse, in accordance with leges art is, whether a medical act is so urgent that it cannot wait for the patient’s informed consent. The second situation pertains to an extension of a medical act before agreed between the doctor or legally authorised person and the patient, extension that implies another different medical act which before has not been agreed upon and is considered as a way to avoid danger to the patient’s life, body, or health (article 150/2/b). In both situations, the doctor or legally authorised person should safely conclude that the consent for the medical interventions or treatments would not be rejected if the patient had the condition to express it. Therefore, these situations are called ‘Presumed Consent’. Finally, the third situation, which is not regulated in article 150, refers to a patient’s incapability (such as minors, interdicts, disabled persons, regulated in article 111and following of the Macao Civil Code); in this situation, the doctor or legally authorised person still needs to obtain informed consent from the patient’s legal representative, even though the patient’s informed consent may be dispensed with10.

Further, we also need to know if the crime regulated in article 150 is a public crime, semi‑public crime, or particular crime. This is very important because it determines who can take action to initiate a criminal procedure against the defendant. If a legal norm that regulates a type of crime does not indicate anything, it is a public crime; in a case in which the legal norm indicates that the criminal procedure depends on a complaint, it is a semi‑public crime; and, if a legal norm shows that the criminal procedure depends on a particular accusation, it means the crime has a particular nature. As article 150/4 indicates that the criminal procedure depends on a complaint, it is a semi‑public crime. In this case, the Public Prosecutions Office can only initiate a criminal procedure if the offended person, regarded as the holder of offended interest, presents a complaint, and which is presented by other person legally indicated if the offended person dies (article 105/1 and 2). Consequently, without a complaint, the Public Prosecutions Office cannot begin a criminal procedure against the defendant.

In conclusion, if doctors or legally authorised persons know how to obtain effective informed consent from their patients, it implies they also know what relevant medical information should be transmitted and how to ensure that their patients clearly understand the transmitted information. For a better understanding, doctors or legally authorised persons should avoid using technical terms and communicate with their patients in an understandable manner11.

Iong Man Teng is a senior instructor in the Faculty of Law at UM, a PhD student in the School ofLaw at the University of Minho in Portugal, and a researcher in the Research Centre for Justice and Governance of the same university. He is committed to researching medico‑legal issues, including civil, criminal and administrative medical malpractice, as well as patients’ safety and their fundamental rights. Some of his articles in these fields have been published by internationally renowned journals.

ISSUE 22 | 2020

Also in this issue


1. Entidade Reguladora da Saúde, Consentimento Informado – Relatório Final, May 2009, p.2.
2. Vera Lúcia Raposo, Do ato médico ao problema jurídico – Breves Notas sobre o Acolhimento da ResponsabilidadeMédica Civil e Criminal na Jurisprudência Nacional, Almedina, 2014, p. 213.
3. It does not imply that its violation only generates criminal liability. Its violation may cause criminal, civil and administrative liabilities simultaneously.
4. If there is no specific indication, the norms refer to those of the Macao Penal Code.
5. This exception refers to ‘therapeutic privilege’ which implies a limitation or reduction of clarification of information to a patient in order to prevent undesirable consequences.
Cfr. Manuel Leal‑Henriques, Anotação e Comentário ao Código Penal de Macau, Vol. III, Centro de Formação Jurídica eJudiciária, 2014, p. 269.
6. Entidade Reguladora da Saúde, op cit., p. 3.
7. Manuel Leal‑Henriques, op. cit. p. 203.
8. About the criteria of accreditation in the Portuguese language, see:
https://www.ssm.gov.mo/docs/8884/8884_16263ce150ac407b990cd16932490f89_000.pdf
9. However, someone considers it as a crime of offence to physical integrity according to article 144.
Cfr. M. Miguel Garcia, O Direito Penal Passo a Passo, vol. 1, Almedina, 2011, p. 195.
However, someone considers it as a crime of offence to physical integrity according to article 144.
Cfr. M. Miguel Garcia, O Direito Penal Passo a Passo, vol. 1, Almedina, 2011, p. 195.
10. Vera Lúcia Raposo, op. cit., p. 172.
11. Entidade Reguladora da Saúde, op cit., p. 3.

2020-08-06T12:21:02+08:00