Medical Liability for Omission under the Portuguese Criminal Law: A Critical Eye on Portuguese Jurisprudence

Abstract

In the Portuguese legal system, criminal liability for omission can be conducted by the legal category that criminalises omission in itself, regardless of the result, or operate by equating omission with action. This is enshrined in section 10 of the Penal Code, as long as the omitting person has a personal legal duty to act as guarantor (section 10, no. 2). In medical criminal liability, the framework for a hypothetical omission by an on-duty doctor in emergency services has been controversial. In our legal system, section 284 of the Penal Code expressly stipulates that a doctor’s refusal to administer care be punishable conduct. On the other hand, it is possible that the doctor on duty in the emergency room of a hospital has a personal legal duty to act as a guarantor, arising from the contract that binds him/her to the hospital. Thus, it is necessary to affirm a subsidiarity relation between the mechanism of equating omission with action resulting from section 10 of the Penal Code and incrimination under section 284 of the Penal Code. However, this has not been the major understanding of the jurisprudence of the Portuguese courts on this subject. For instance, when the refusal of assistance by a doctor causes the death of a patient, instead of convicting the doctor for homicide by omission (section 131 of the Portuguese Penal Code, ex vi section 10, numbers 1 and 2), courts are convicting as per section 284 – refusal of the medical doctor to provide medical assistance. The present work aims to critically present this jurisprudence, state the legal and doctrinal foundations that justify the inclusion of these hypotheses within the scope of crimes committed by omission and point out the practical importance of choosing this solution. Keywords: Omission; Committed by omission; Medical liability; Duty to act as guarantor.