Consentimiento informado y responsabilidad penal en la salud: causal de justificación de la antijuricidad.

Abstract

In Ecuador, informed consent is a constitutional right that protects patient autonomy; however, its capacity to exclude criminal unlawfulness for harmful results inherent to medical practice is not expressly regulated in criminal legislation. This study analyzes, from a dogmatic-criminal methodology and with a review of national jurisprudence, whether valid informed consent, in accordance with lex artis, can operate as a cause for criminal justification. It examines the constitutional and legal framework, the dogma of unlawfulness, and contrasts it with the models of Germany, Spain, Colombia, and Argentina. The results show that informed consent, when it complies with formal and material requirements, can be interpreted as a “regular exercise of the right to personal autonomy,” excluding unlawfulness and harmonizing the principles of legality, dignity, and individual freedom. A probative protocol that allows for distinguishing between admissible medical harm and criminally reprehensible injury is proposed, strengthening the legal security of healthcare professionals and patients' rights. Keywords: informed consent; unlawfulness; justification; medical criminal liability; right to personal autonomy