Limits to the Right of Self-determination of patients suffering from COVID-19

Abstract

Informed consent is the consecration of the right to self-determination, a right that was reaffirmed in 2009 by the advance directive law 18,473, a norm that, in a similar sense to what was already provided by law 18,335, enshrines the right to self-determination of patients but not in an unlimited way, which is why we say that this right should be relativized and harmonized with others of equal or greater rank.
In this regard, it is worth asking what is the limit of self-determination. Well, the limit is given precisely when the patient's decision has the potential to affect the health of third parties or the collective health in general, and that is the case of patients who transit the COVID 19 virus and are opposed to complying with the medical prescriptions that are formulated by the treating doctors or the health authority, in this case the MSP, in application of the provisions of article 44 of the Constitution of the Republic and the organic law of public health 9.202 of year 1934.
In this sense, it should be noted that law 18,335, in addition to establishing the user's duty to take care of their health, establishes the obligation to submit to the preventive or therapeutic measures imposed on them when their state of health in the opinion of the MSP may constitute a public danger. For its part, Decree 274/2010 establishes that the opposition of a patient to follow a treatment will not take effect when faced with pathologies that imply a certain risk for the society that integrates.