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The panel concluded that the doctor appears as a necessary confidant, and is prohibited from revealing secrets that he is aware of due to his profession.

From the Editor

 

Tuesday, March 14, 2023

 

This Tuesday, the 14th, the 6th panel of the STJ closed a criminal case that investigated the crime of abortion caused by the pregnant woman herself. The panel, unanimously, concluded that the evidence in the case was null and void, since it was provided by the doctor who treated the accused, who is prohibited from revealing secrets that he is aware of due to his profession.

 

According to the process, the patient was approximately 16 weeks pregnant when she felt ill and went to the hospital. During the treatment, the doctor suspected that the condition was caused by the ingestion of abortion medication and, therefore, decided to call the Military Police.

 

After the investigation began, the doctor would have forwarded the patient's medical records to the police authority to prove his statements, in addition to being called as a witness. Based on this information, the Public Prosecutor's Office proposed criminal action and, after the first phase of the jury trial procedure, the woman was sentenced for the crime under article 124 of the CP . 

 

In the request for habeas corpus, in addition to supporting the thesis of breach of professional secrecy by the doctor, the defense pointed out alleged incompatibility between the criminalization of induced abortion and constitutional principles, requesting a declaration of non-receipt, under the 1988 Constitution, of article 124 of CP. 

 

6th panel of the STJ blocks criminal proceedings against a woman accused of an abortion by her own doctor.

When voting, Minister  Reis, rapporteur of the case, highlighted that according to art. 207 of the CPP , people who, due to their function, ministry, trade or profession, must keep secrets are prohibited from testifying, unless, when released by the interested party, they wish to give their testimony.

 

Your Excellency. He also highlighted that the doctor who treated the patient falls within the aforementioned prohibition, since he appears as a necessary confidant, being prohibited from revealing secrets that he is aware of due to his profession, as well as from testifying about the fact as a witness.

 

Thus, in his understanding, the opening of the police investigation was the result of provocation on the part of the doctor himself, who, in addition to being unduly listed as a witness, forwarded the patient's medical records to prove the statements.  "The criminal action is contaminated by elements of information collected illegally, and is therefore null", he asserted.

 

In this sense, the HC allowed the criminal action to be suspended. Furthermore, it determined that the files be forwarded to the Regional Council of Medicine, as well as to the local MP so that appropriate measures can be taken regarding the conduct of the doctor who treated the patient and reported the crime.

 

The board unanimously followed the understanding.

 

Review

 

At the end of the trial, ministers criticized the Judiciary's handling of the case. "I just consider that, here, everyone made a mistake, right?", said  pointing out that, in addition to the doctor, the MP and judge, who allowed the professional to testify, made a mistake.  Reis endorsed the speech, and highlighted that the Judiciary itself, which complains about the number of cases, feeds on these processes, "reiterating errors". 

 

 link: https://www.migalhas.com.br/quentes/383032/stj-tranca-acao-penal-de-mulher-acusada-de-aborto-pelo-proprio-medico