Dr. José Carlos Fuertes Rocañin, a renowned psychiatrist specialized in Legal and Forensic Medicine, answers three questions related to Forensic Medicine.
When can a physician incur criminal liability?
Criminal liability is defined as the obligation to answer before the criminal laws due to the actions performed. Any professional, and specifically, the healthcare professional, may incur criminal liability in the following cases:
- Like any other citizen
- By using their knowledge to commit a crime
- By recklessness, negligence or inexperience.
Of the three previous assumptions, the one that most frequently leads to criminal liability is the third, i.e., that of negligent conduct (not intentional, but in which the objective duty of care is violated) and which refers to recklessness, negligence or inexperience. As regards the second of the sections, in this type of situation there is what in legal terminology is called “malice”, which can be translated as intentionality to produce the action. This would be the case of falsification of a medical certificate, practice of abortions outside the legal assumptions, active euthanasia, irregular prescription of drugs, etc.
Criminal liability is based on the following premises:
- Pre-existing obligation of assistance (by contract or legal imperative).
- Transgression of the “lex artis” (medical misconduct).
- Production of a damage (physical, psychological or moral).
- Cause-effect relationship between the medical action and the damage produced.
The causal relationship between the professional’s conduct and the occurrence of the damage must be firmly established. When there is no direct line between the action and the result, criminal liability must be denied and the case must be referred to the civil or administrative sphere. If the professional is criminally convicted, he is also obliged to compensate the damages caused, i.e., criminal liability entails civil liability.
Is suicide punishable by law?
Spanish law does not punish suicide. It does, however, punish cooperation or inducement (Art. 143 of the Penal Code). The penalties imposed are from 4 to 8 years in the case of induction and from 2 to 5 years in the case of cooperation. If there are humanitarian reasons for aiding suicide, the penalties will be applied in their lower degree.
What are the psychiatric exonerating and attenuating factors of criminal liability?
First of all, there are the EXEMPTIONS of responsibility, that is to say, those that completely annul the culpability of the subject. Among them are
- Psychic abnormalities or alterations
- Transitory mental disorder
- Full intoxication
- Abstinence syndrome
- Serious alterations in perception
In second place we have the so-called ATENUATING ones, that is to say, those that diminish the penalty in one or two degrees and are the following:
- The previous ones if they are not very intense
- Rapture
- Obcecation
- Passionate state
- Insurmountable fear