SUMMARY

The Law 41/2002, 14 of November, basic and regulatory of the patient autonomy (LAP, in Spanish) and of rights and obligations of clinical information and documentation includes for the first time in our legal code the legal processing of the consent lent by underage people in the healthcare environment (art. 9.3.c).
Although several questions arise with respect to the capacity of self-determination of underage people in the biomedical environment, one that stirs up a greater debate is that referring to the decision-making ability of underage people when it comes to the free exercise of their sexuality and to an eventual pregnancy, as well as the role that, given the case, will correspond to their representatives. Although the LAP has resolved some of the existing problems before its approval, it has not hindered the discussion on the reproductive and sexual rights of underage people.

As one can tell from the art 9.3.c) LAP, the underage patient that is capable of understanding the reach of the intervention, both intellectually and emotionally, will have right to consent this by herself. But this general state is completed with a series of special rules, among which the one that is found in the art 9.4 LAP. According to this precept, "the voluntary interruption of the pregnancy, the practice of clinical trials and the assisted reproduction techniques practice are governed by the established generally applicable rules on the adulthood and by the special dispositions of application". This precept turns out to be transcendental in relation to the abortion, and diverse positions are maintained on its meaning.

For certain social sectors and of the scientific doctrine, the regulation contained in the LAP (especially, its art. 9.4) does not hinder to understand that the underage pregnant females that wish to abort, always within the legal framework predicted in the penal legislation, are fully qualified to decide for themselves, provided that they have sufficient capacity of judgment to understand the meaning of their decision. Consequently, it would not be necessary to require the intervention of their legal representatives, which should only be reported of the above mentioned decision if the underage patients thus declared it, or if the intervention meant a serious risk for their health, just as one can tell from the art. 9.3 LAP.

The ones who maintain this position offer an essential importance to the remission to the adulthood "generally applicable". Thus, according to these authors, it would allow to maintain the operative capacity of the civil dispositions that recognize availability to the underage one in the exercise of very personal rights.

In its change, according to another sector of the legal doctrine (with which we coincide), the reference of the art. 9.4 LAP to the adulthood should be interpreted in the sense that this collects an express exception to the general rule of natural capacity of judgment predicted in the art. 9.3 LAP.

The lawmaker would have wanted to state through this precept that the rule of the general capacity of underage people with sufficient capacity of judgment does not turn out to be applicable in all the cases and that, under certain assumptions, on grounds of relevance, it should be required, in any case, the adulthood. By the reference to the adulthood, the art 9.4 LAP aims to require that those being submitted to the practices referred in it are over eighteen years old, and otherwise, to require the intervention, in that case, of their legal representatives.

On the other hand, according to the LAP, the patient is supposed to be the recipient of the information and a duty of confidentiality on the doctor’s behalf exists, which should be respected when it comes to an underage patient but with sufficient capacity of judgment. This criterion turns out to be fully applicable to the information in matters of sexuality and reproduction. This is clear in the case of underage patients over sixteen years and emancipated (cfr. art. 9.3.c) LAP), but under that age, before certain type of situations, the doctor can doubt of the capacity of the underage patient, case in which he/she might require the paternal intervention and to transmit the information, or to communicate such information to the legal representatives of the underage male or female when they ask for it.

Therefore, the question is in what circumstances a third party (mainly the parents or legal representatives of the underage patient) can have access to the medical information of an underage person embraced in the medical history, since it is obvious that this can contain information that they do not know (for instance, whether their underage daughter has turned to the doctor in search of contraceptives).

Set against the general rule of respect to the will of the underage patient (maintenance of the duty of confidentiality), there might be some concrete cases that would allow to adopt, in an exceptional way, a different decision. Thus, in those cases in which the applicable legislation requires producing the consent on the part of the legal representatives of the underage patients, independently of their natural capacity of judgment, it means necessarily that it should be transmitted to the former ones all the information that turns out to be necessary so that they can lend the above mentioned consent in a valid way.

This way, since the art 9.4 LAP requires the consent of the legal representatives of the underage patient to proceed to the voluntary interruption of a pregnancy, it will be necessary to previously report them of the fact of the pregnancy itself and, very probably, of another type of data on the underage person that can turn out to be prominent in the concrete case.