Consent in health law in the contexts of medical care and the LGPD differences, similarities and consequences with regard to defects and liability

Abstract

This article intends to outline the content of the health services user's consent, in its bifurcation: in the scope of medical care and in the processing of patient data. The proposed analysis gives rise to a trajectory that necessarily transposes the conceptual exploration of consent in these two segments, in order to reach the investigation of their functions, of the differences in consent in the two bundles previously indicated, the limits of each and the boundary between lawfulness and illegality in obtaining these consents, to verify if there is a differentiation in the outlines of consent in medical care, in comparison with the consent in the use and processing of sensitive data under the LGPD, applied in the private health sector. This is a current and pertinent theme, evidenced by the recent validity of the LGPD and the importance of protecting sensitive data that involves the health of its holder, given the severity of the damage that can be caused by possible misuse, the repercussion of which may still be felt in the Courts, in indemnity claims that may be proposed by patients who have suffered damages due to failures in consent, both in terms of care, as well as in the use and data processing.