Informed consent in the brazilian case law

Abstract

Informed consent corresponds to the concretion of the respect for patient's autonomy in medical care practice, representing a deep change of paradigm to the doctor-patient relationship. Bioethics and American courts had concurred for its birth and development. However, the way informed consent has been delineated by the courts has restricted it to the fulfillment of the legal duties to obtain patient's consent and to disclose information. Moreover, the popularization of consent forms containing standardized information for the purpose of evidence of the fulfillment of such duties has moved informed consent away from its original foundation. In Brazil, informed consent was first developed by Bioethics and only recently the legal approach has started to emerge. Regarding its approach by the Brazilian courts, it was verified in a study of case law that informed consent is a reality in such courts, basically due to the questioning on the doctor's duty to disclose information. Such questioning is based on the application of the Consumer's Statute to the doctor-patient relationship. Thus, Consumer's Statute aspects - such as the use of an objective standard of information and the focus in the protection of the consumer - have delineate the understanding of the Brazilian courts on informed consent in medical care practice. The acceptance and even the requirement of the standardized forms utilization were mentioned in many of the obtained decisions. Therefore, there are indications, that the judicial approach of informed consent in Brazil is following the path trod by the American case law.