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14.2 The Legal Relevance of Advance Directives in the Macanese Criminal Code

One of the most relevant provisions in the Macanese CC is Article 150, which provides for the crime of “arbitrary medical-chirurgical interventions”.Footnote 6 Number 1 of this norm states that “[t]he people mentioned in Article 144 that in view of the purposes referred to therein, perform effective intervention or treatment without the patient’s consent shall be punished with imprisonment up to 3 years or a fine”.Footnote 7 In contrast with the situations in nearby jurisdictions, such as Hong Kong, the PRC or Taiwan, in Macao, a doctor who does not obtain lawful consent for medical interventions or treatments commits a criminal offence: the crime of arbitrary medical-chirurgical intervention. According to the wording of the norm, the criminal penalty applies even if the patient’s health condition improves, and even if their life is saved by the doctor. In practical terms, however, it is unlikely that the doctor would be condemned; certainly, in Macao, there are no instances of legal suits having been brought against doctors, based on this norm, and the instances of such legal suits in Portugal are few in number.

However, obtaining lawful consent is not an absolute requirement for doctors. Lawmakers have accepted that in certain scenarios it is not possible to obtain the patient’s prior consent, and thus Article 150/2 includes two exceptions. The first refers to a situation in which consent can be obtained, but would require that the medical intervention be postponed, an eventuality that would involve danger to life (simple danger) or serious danger (qualified danger) to body or health. The second involves a situation in which consent has been given for a certain intervention or treatment, but it is later discovered in the course of treatment or surgery that a different procedure must be performed (due either to new information on the patient’s medical situation or to actual changes in the patient’s condition) to avoid danger (simple danger) to life, body or health. However, for the doctor to avoid criminal prosecution, an additional condition is set for both exceptions: the existence of circumstances which lead to the certain conclusion that consent would be refused. Such circumstances include conversations with the patient’s family members, relatives or friends, and the existence or discovery of ADs or similar documents. A hypothetical danger that is not likely to occur is not an adequate basis for medical intervention or treatment; otherwise, it would be acceptable to invoke presumed consent each time a doctor wanted to override a patient’s wishes.Footnote 8 Doctors must be able to safely conclude that the patient would not have rejected the proposed medical interventions or treatments if they were in a condition to express their will.

This requirement – the absence of circumstances leading to the certain conclusion that consent would be refused, provided in Article 150/2 of the CC – is called “presumed consent”. This solution is established in Number 2 of Article 38 of the same code,Footnote 9 which provides the legal regime of consent for most situations, whereas Article 150/2 provides a specific regime that is only applicable to the medical domain.Footnote 10 The relation between these two norms is one of lex generalis/lex specialis. However, there is a difference between the two: Article 38/2 considers the conduct lawful whenever the surrounding circumstances lead to the conclusion that the holder of the legal interests protected (the person whose consent is required to prevent the agent’s criminal liability) would have provided his/her consent, whereas Article 150/2 considers the conduct lawful unless the surrounding circumstances lead to the conclusion that if the interest holder were in a position to express their will, consent would have been refused. Thus, Article 150/2 permits broader scope for some interventions to be made without consent than does Article 38/2.Footnote 11

Presumed consent cannot become an instrument used to override the patient’s refusal of a medical act in favour of the relatives’ wishes or the doctor’s assessment. Article 150/2 of the CC clearly centres on the patient’s true wishes, as demonstrated by a systematic interpretation of the CC and the inclusion of this criminal provision in the chapter regarding self-determination. Accordingly, the legal value protected in Article 150 of the CC is self-determination in health matters – that is, regarding the healthcare that the patient desires to receive (or not).

There are, of course, some situations where the patient’s doctor does not have any knowledge of the patient’s wishes. When there is doubt surrounding the patient’s presumed decision, doctors must intervene and provide the required medical intervention or treatment, in line with the in dubio pro vita principle,Footnote 12 that is, in case of doubt, the doctor should act on decisions that will safeguard the patient’s life.

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