Consentimiento informado y responsabilidad penal (Informed Consent and Criminal Liability)

Most of the legal scholarship in Spain considers that the informed consent of the patient does not play a significat role in deciding to charge a physician with an offence of battery, because this offence requires an objective worsening of the health. This stance has been rejected by others scholars and also by the Supreme Court in any isolated decision. A recent Judgment of the Spanish Constitutional Court held that any unconsented medical treatrment means a violation of the right to phsysical integrity, which is precisely the legal interest protected by the offence of battery. In this article, the author defends that the principle of autonomy leads to the adoption of a subjective concept of health. That means to consider the unconsented medical treatments as conducts chargeable with the offence of battery.