Amanda Sarnáglia de Oliveira Almeida
Lawyer admitted to the Brazilian Bar Association since 2014, associate at Kellner Sociedade de Advogados – Graduated from the Castelo Branco College – Colatina/ES.
The Statute of the Child and Adolescent (ECA) brings in its article 2, which is considered a child, the person until twelve years of age incomplete, and adolescent that between twelve and eighteen years of age.
Subsequently, in his art. 11, the ECA provides full access to the care lines aimed at the health of children and adolescents through the Unified Health System, observing the principle of equity in access to actions and services for the promotion, protection and recovery of health.
In This sense, in order to ensure full access to the health of children and adolescents, the Federal Council of Medicine elaborated the Opinion N º 25/2013, considering the following situations for the care of the child and the adolescent without the follow-up of his Legal Guardian:
1) In Case of urgency/emergency care should be performed, taking care to ensure the highest possible safety to the patient. After This step, communicate with those responsible as soon as possible;
2) In pre-adolescent patients, but in conditions of spontaneous attendance to the service, the care can be made and, simultaneously, established contact with those responsible;
3) In relation to adolescent patients, there is an international consensus, recognized by Brazilian law, that between 12 and 18 years old, these have their privacy guaranteed, especially if they are more than 14 years and 11 months old, considered mature in terms of understanding and Compliance with the guidelines received;
4) In the range of 12 to 14 years and 11 months the attendance can be carried out, and should, if necessary, communicate those responsible.
Therefore, following guidance emanated by the CFM, this legal department advises that those under 12 years old, are always accompanied by their parents or their legal guardian, during the period of attendance and hospitalization.
The guidance is justified, in view of the limited autonomy of the minor, in his ability to understand and decision-making, needing a legal guardian to answer for his interests. In the case of attendance without follow-up, and in the absence of subsequent contact with relatives, the Guardianary Council should be triggered.
Adolescents, those aged 12 years and 18 years, can be treated alone, if they wish, if their autonomy and individuality are recognized by the professional, guaranteeing the right to secrecy of the information obtained during the attendance, and The situations provided by law and those that hold the patient’s life-threatening, and may therefore sign the service form.
It Is important that the professional assess the adolescent’s cognitive development, to decide on the need or not of the parents or guardians during consultations.
For cases of hospitalization of these adolescents, it is recommended that in all cases they are always accompanied by the parents or legal guardians, and the guardians must sign the documents of the medical records.
If the pregnant women between the ages of 15 and 18 are unwilling, provided they have the ability to discerthe[1] and Express will, recognized by the professional, and it is impossible to communicate with those responsible, they may sign the consent form Authorisation to perform a rapid HIV test.
For pregnant women under 15 years of age who are unaccompanied, and if it is impossible to communicate with the parents or the person responsible, we advise to immediately trigger the Tutelary Council.
In relation to the underage mothers, who accompany their children, we recommend that between 15 and 18 years, provided that they have the capacity for discernment, recognized by the professional, and it is impossible to communicate with the parents or legal guardian, they may Sign as responsible. Mothers younger than fifteen (15) years, necessarily lack the presence of one of their parents or legal representative.
For minors married or in a stable union, they should be analyzed on a case-by-case basis. It should be Emphasized that, as a rule, marriage is only possible for those with sixteen full years, requiring the authorization of both parents or their legal representatives, while not reached the majority of civilians.
Thus, since the civil majority is only reached at age 18, the Civil Code of 2002 establishes as a hypothesis of anticipation of full capacity, by virtue of emancipation, marriage. In such cases, it is not necessary to follow up the parents or legal guardian, allowing the person to sign the documents themselves. The same prediction does not exist in the case of stable union, which is why the situation should be assessed.
[1] discernment is the essential element for the manifestation of the autonomy of the subject of law endowed with legal personality, provided that it is able to establish difference, distinguish and make appreciation, AS: SÁ, Maria De Fátima Freire de ; NAVES, Bruno Torquato de Oliveira. Biolaw Handbook. 3rd ed. Belo Horizonte: Del Rey, 2015, p. 108.