O idoso e a autonomia privada no campo da saúde

Abstract

This paper is to discuss the personality rights of the elderly, in particular the exercise of their private autonomy in matters related to their health. First, the goal is to draw notes about the elderly in the family and sociological context, as well as the relevance of the Constitution, which lifted the person as a fundamental value of the legal system. It will be develop on first chapter the concepts of duty of care and paternalism, as ways to protect the vulnerability of the elderly, highlighting their complementarily. As the legal disability was conceived to regulate relations involving property, it is extremely important to promote a new understanding of the institute, guided by the civil-constitutional method, according the relation involving the person itself to promote full protection of the elderly, assisting him in the exercise of their autonomy. That is one of the objective of the second chapter. From the third chapter, complementarily between duty of care and paternalism will be developed through the analysis of the doctor-patient relationship by exposing the ethics and legal bases that materialize the principle of human dignity, where control gives rise to communion consistent with the constitutional dictates. It also be given special emphasis to the interpretative parameters to guide the jurist in applying the article 17 of the Statute of the Elderly, which provides the legal representatives of the elder when they cannot chose the medical treatment that understand to be the most adequate, with particular reference to the principle of the best interest of the elderly, the informed consent and the advanced directives.