The massification of medical training and the establishment of professional control
mechanisms
The (positive) proliferation of medical professionals and the consequent massification
of health care increased the number of social conflicts between the actors involved
in this relationship, culminating in the well-known phenomenon of the judicialization
of health. In addition to the legal dispute between doctor and patient, as a rule,
resulting from the most varied causes of erosion of the bond of trust between the
parties - nowadays, there is also an increase in conflicts between the doctors themselves
when their structures lato sensu associations serve as a mechanism for monitoring professional practice.
In this sense, the punitive function of the Professional Councils is of relative notoriety,
which holds for themselves the power duty granted by the State to determine the deontological
beacons of medical action and, consequently, the respective penalties for non-observance
of this objective standard of conduct. In addition, despite the secrecy that involves
investigating ethical infractions, the publicity of some penalties and the feasibility
of quantitative disclosure of punishments by the Councils themselves allow us to assess
how much this expedient has been used against medical malpractice.
On the other hand, in addition to this aspect derived from the Indirect Federal Public
Administration, another focus of social conflict that appears is the use - by Societies
of Medical Specialties (notably the Sociedade Brasileira de Cirurgia Plástica - SBCP - Brazilian Society of Plastic Surgery) - of administrative processes with
a sanctioning bias, to curb (and preventing) misconduct by its associated professionals.
Such an initiative, in addition to the dissatisfaction that it usually causes in the
investigated/punished doctors, also causes uproar among jurists, who differ on the
legal compliance of such sanctions, notably whether this expedient would be a usurpation
of the legal power exclusively conferred on the Professional Councils.
Faced with this question, the objective of this study is to ascertain whether Societies
of Medical Specialties have legal support to proceed with the analysis of professional
conduct, notably regarding the possibility of attributing penalties to associated
physicians. At first, it will be essential to look into the legal nature of Medical
Societies of Specialties, their legal rules and the scope of their attributions.
Further on, it will be necessary to investigate the contours of the administrative
procedures carried out by the associative entities; in general, the essential legal
rules for their files and, specifically, how such a legal microsystem applies to Specialty
Medical Societies. Next, the guidelines for determining the conduct of the members
of the Sociedade Brasileira de Cirurgia Plástica will be addressed as an inductive method of analysis of the problem posed, detecting
whether such norms are following the national legal system, especially regarding the
competencies delegated to the Professional Supervisory Councils.
The legal nature of specialty medical societies, associative punishments and their
legal limits
The evolution of the legal system in humanity made it necessary to create a figure
capable of carrying out a business that distinguished itself from the personality
of the citizens. The collectivization of social relations itself forced this hypothetical
and idealized model, which is the figure of the well-known legal entities. Carlos
Roberto Gonçalves1 adds that “the raison d’être of the legal entity lies in the need or convenience of individuals
to join efforts and use collective resources to achieve common goals, which transcend
individual possibilities.” The Brazilian Civil Code2 has a clear and unequivocal guideline that it can only be configured as a legal entity,
therefore having its own legal personality, those that are expressly configured in
the legislation; therefore, only legal entities are:
Art. 41. The following are legal entities governed by internal public law:
I - the Union;
II - the States, the Federal District and the Territories;
III - the Municipalities;
IV - municipalities, including public associations; (Wording provided by Law No. 11,107
of 2005)
V - other public entities created by law.
Single paragraph. Unless otherwise stated, legal entities governed by public law,
to which a structure of private law has been given, are governed, as far as applicable,
in terms of their functioning, by the rules of this Code.
Art. 42. Foreign States and all persons governed by public international law are juridical
persons governed by external public law.
[...]
Art. 44. The following are legal entities governed by private law:
I - associations;
II - the companies; III - the foundations.
IV - religious organizations; (Included by Law No. 10,825, of 12.22.2003) V - political
parties. (Included by Law No. 10,825, of 12.22.2003)
VI - individual limited liability companies. (Included by Law No. 12,441 of 2011)
It follows from this scenario that - in parallel with the individual work performed
by the optional - medical activity is also exercised, primarily in the form of or
in favor of legal entities, whether in favor of the Unified Health System provided
by public entities (Union, States and Municipalities), either through hospital institutions
or medical service providers (societies), or through the Federal Council of Medicine
(autarchy), or even through the most various medical specialty societies that, despite
their name, are the characteristic of associations, in the exact terms of art. 198
and 199 of the Federal Constitution3.
As stated earlier, the object of study of this work will take induction as a scientific
method; that is, it will start from the analysis of a specific example in order to
create a general hypothesis; for that, the observation will come from the Sociedade Brasileira de Cirurgia Plástica (SBCP), given that it is the medical specialty society with the greatest notoriety
regarding the problem now faced: the application of associative punishments.
At the outset, it is clear that the SBCP has the guise of a legal entity since it
presents itself as a collectivity of individuals suitable for a specific purpose,
as well as conforms to one of the detailed configurations, more specifically that
of associations, since it is the union of persons for non-economic purposes (art.
53, Civil Code). The entity’s own Statute4 provides this provision expressly in its
article 1st when it adds that the Sociedade Brasileira de Cirurgia Plástica (SBCP) is a non-profit civil association, of a scientific nature, of national scope,
registered in the National Council of Social Service of the Ministry of Education
and Culture. As a legal entity in the form of an association, the SBCP - like all
medical societies of specialties - comes together, without seeking economic bias,
to achieve certain ends provided for in its organizational statute. The art. 3rd of that document lists such purposes:
Article 3rd - The SBCP has the following purpose at the national and regional levels:
I) Represent Brazilian Plastic Surgery and its areas of activity before the Brazilian
Medical Association (AMB), of which its Department of Plastic Surgery, as well as
before any other medical, paramedical, similar or similar entities, national or foreign,
with which it is in your interest to maintain contact, exchange, correspondence or
representation;
II) To care for the reputation and concept of Plastic Surgery, as well as to contribute
to its progress, promoting the improvement of specialized knowledge and encouraging
the training of specialists;
III) Provide moral and ethical-professional protection to regularly enrolled members,
when requested, in order to protect the exercise of the specialty;
IV) Create and organize continuing education programs;
V) Sponsor, organize, support, guide and assist National and International Congresses
and other scientific events of interest to the SBCP;
VI) Create awards, regulating their granting;
VII) Supervise and guide activities related to the exercise of the specialty;
VIII) Organize, edit and distribute publications;
IX) Accrediting Plastic Surgery Services and their areas of activity for training
and specialization of doctors, as provided for in its own Regulation;
X) Provide the technical means and approval criteria for Obtaining the Specialist
Title, as well as its periodic revalidation with AMB and CFM, following legal rules;
XI) According to opportunity and convenience, (i) maintain, (ii) participate and/or
(iii) sign agreements and contracts with institutions linked to the SBCP, which have
a care and/or scientific purpose, related to plastic surgery;
XII) Sponsor, organize and promote the provision of voluntary medical services related
to plastic surgery.
Once the associative purposes have been established, it is natural that the community’s
interest gathered there is to achieve such goals, ruling out any conduct that meets
the idealized standard.
In fact, the SBPC has a document parallel to its own Statute detailing a list of behavior
standards - the Internal Rules of Conduct5. In this sense, and reproducing an established social model of punishment as a pedagogical
mechanism, associations usually have an internal system for ascertaining responsibilities
for misconduct accusations; in the case of the SBCP, such attribution is the responsibility
of DEPRO - Department of Professional Defense, created by art. 65th of its Statute. Further on, the same statutory document lists - in its art. 68th - what are the possible punishments, within its legal scope, for those associates
who behave in disagreement with the model created by their peers:
Article 68th - A MEMBER, ASPIRANT TO MEMBER, INTERNATIONAL MEMBER and TEMPORARY FOREIGN INTERN
of the SBCP that violates the reputation and concept of the specialty, as well as
infringes the rules contained in this Statute, in the Regulations and Rules of the
national SBCP, will be subject to the following penalties:
I) Confidential notice;
II) Public censorship, with publication in an official body of the SBCP;
III) Suspension of rights and prerogatives for a period of 6 (six) to 12 (twelve)
months, with publication in an official body of the SBCP;
IV) Exclusion from membership, with publication in an official body of the SBCP, with
recourse to the General Meeting.
In summary, the SBCP’s reasoning - which is reproduced in several associations of
an identical or different nature - is that (i) there is a meeting of people with common
goals and that it is through their union that such goals will be achieved; (ii) likewise,
it is in the association’s interest that the members maintain an adequate posture
to the standards chosen by themselves, under penalty of prejudice to the achievement
of these goals; (iii) as a way of pedagogically discouraging breaches of this gold
standard of conduct, the SBCP has a list of punishments for associative deviations
committed by its members.
This line of ideas is reasonably simple, and it is believed that there are no controversies
around the possibility that the SBCP, as well as any association, has its own mechanisms
to guarantee internal organization and respect for the guidelines chosen by its own
community. . The points of doctrinal tension - which already border/bordered the Brazilian
Courts - usually concern the limits concerning the power to punish conferred on these
legal entities.
The biggest, and undoubtedly the most notorious legal clash concerns what is conventionally
called, in legal doctrine, the “horizontal effectiveness of fundamental rights.” The
consecration of this theory came, in Brazil, through the judgment by the Federal Supreme
Court of the Extraordinary Appeal nº 201.819/RJ6, which dealt with the incidence or
not of the fundamental guarantee of the adversary and the broad defense in associative
procedures of exclusion of members by violation of the statute. The Court understood
that, even though the organization has a privatized character, one cannot lose sight
of applying the most basic principles, rights and fundamental guarantees. In practice,
the Praetorium Excelso said that “in certain situations, the norms, especially the constitutional ones, relating to
due process of law, to the adversary system, can also be invoked in these so-called
horizontal relationships [between individuals].”
It can be seen, therefore, that the principled and material incidence of fundamental
rights to private relationships imposes that even private entities need to follow
a minimum of legal-guarantee guidance, including in the internal process of punishment,
under penalty of converting such an act into arbitrariness. If the greatest sanctions
that may be imposed on citizens within the constitutional sphere are criminal penalties,
and such punishments need to be accompanied by a series of guarantees, let alone the
internal administrative process that takes place within the scope of a private association,
whose penalty is much less burdensome to the dignity of the human person, as well
as the acts practiced are also less offensive to the community.
In summary, even in the determination of associative responsibility, it is necessary
to guarantee to the associate a fair process following the institution’s rules; that
it is known in advance which conducts are allowed and which are prohibited and that
even the list of punishments is previously described, in order to avoid surprises
to those who are exercising the sacred right of defense.
The legal conformity of the coexistence of sanctioning microsystems of medical activity
Once the legal framework guiding the punitive procedure within an association has
been verified, it is necessary to focus on other aspects equally relevant to understanding
the cause. It is well known that the supervision of the ethical exercise of professions
is the responsibility of units formed by the professionals themselves, organized in
Councils created by law and maintained with fiscal resources collected from these
same supervised. Specifically to Medicine, it is the Ordinary Federal Law nº 3.268/19577, approved by the 1988 Constitution, which, in addition to implementing the professional
qualifications necessary for the exercise of the profession in Brazil, also creates
the respective Federal and Regional Councils, true autarchies under a special regime.
, components of the Indirect Public Administration of the Union - in this sense, see
Direct Action of Unconstitutionality nº 1.717-6 DF judged by the Federal Supreme Court.
It is, therefore, legitimate that the Professional Councils - and, more specifically,
the Federal and Regional Councils of Medicine - can use disciplinary power against
those doctors who deviate from applied medical ethics.
Implementing the guidelines explained above, Law No. 3,268/1957 creates and regulates
the exercise of the Federal Council and the Regional Councils of Medicine in Brazil.
Among the various rules established in the aforementioned law, one can see - in particular
- those contained in art. 15th and 22nd of the aforementioned diploma, here they are:
Art. 15. The Regional Councils are responsible for the following:
[...]
c) to supervise the exercise of the medical profession;
d) knowing, appreciating and deciding on matters relating to professional ethics,
imposing the applicable penalties; ***
Art. 22. The disciplinary penalties applicable by the Regional Councils to their members
are as follows:
a) confidential warning in a reserved notice;
b) confidential censorship on reserved notice;
c) public censorship in official publications;
d) suspension of professional practice for up to 30 (thirty) days;
e) revocation of professional practice, ad referendum of the Federal Council.
§ 1 Except in cases of manifest gravity that require the immediate application of
the most serious penalty, the imposition of penalties will obey the gradation of this
article.
It was seen lines ago that it is the right of the citizen to gather collectively in
their own entities, to be organized by the associative model, and that such association,
in the effort to protect their common interest, can punish associates who deviate
from their standard of conduct. As the case in question deals specifically with associated
specialist physicians, the SBCP has a list of punishments that has a certain similarity
- not to say almost complete identity - with those sanctions imposed by the CFM/CRM.
Hence, is there a legal shelter for the SBCP’s performance? The answer, under the
prism above, is positive.
The core of the debate takes place in two perspectives: the legal nature of the act
of acceptance of associative/deontological norms and, mainly, the scope of the punishments
eventually imposed by such bodies. The SBCP, as fully explained, is a private association
that brings together doctors who are specialists in plastic surgery, per its statute.
Practicing medicine, or declaring yourself as a specialist in plastic surgery, does
not need to be associated with the SBCP or not; being a member of the association
is not an essential requirement for the development of work activities, either as
a doctor or as a propagator of their specific knowledge in a specialty, since the
completion of a medical residency in a training program recognized by the Ministry
of Education and the National Commission of Medical Residency guarantees such degree
(article 6, Federal Law nº 6.932/19818). On the other hand, the Brazilian legal system does not allow a citizen to practice
medicine in Brazil without being enrolled in a Regional Council of Medicine, under
penalty of incursion into the crime provided for in art. 283 of the Penal Code9.
Reasoning retroactively, a punishment carried out by a Professional Council to the
doctor necessarily has consequences for his work since a more serious penalty - such
as suspension or revocation of the registration - implies an absolute impediment (except
for occasional exceptions) for the medical activity. From another angle, an associative
punishment, even if the most severe of all (expulsion from the SBCP staff), cannot
prevent - per se - this same doctor from continuing to act in his office nor failing
to disclose himself as a specialist.
This subtle, but essential difference, denotes that there is no usurpation of the
SBCP in the prerogative of the CFM/CRM to investigate eventual deontological deviations.
In fact, the conclusion adopted in one sphere (deontological or associative) does
not necessarily imply a hierarchy and obedience to the conclusion of the other, given
the lack of legal provision in this regard. That is to say: an associative condemnation
does not imply an automatic ethical-professional condemnation and vice versa since
there is no legal provision that commands in this sense. However, art. 71 of the SBCP
Statute, even without legal support, allows the SBCP to replicate the penalties imposed
by CRM within its organization automatically. The absence of details on the correlations
and procedure, however, raises questions about the validity of this point.
This is because, despite different opinions on the doctrine, the similarity of punishments
does not inexorably imply the impossibility of applying said penalty; the legislation
is abundant in this sense. By way of example, criminal law - the ultima ratio in the legal system, whose power to punish reaches the bodily sphere of being inclusive
- has a fine penalty among its afflictions (art. 32, CP). In the same way, the civil
system can also expedient pecuniary aggression to the desidious doctor (art. 789,
CPC) and the associative sphere itself. Although deontologically, Medicine does not
contain an ethical pecuniary punishment, other Professional Councils do, such as the
Brazilian Bar Association itself (art. 35, EOAB10).
In the same line of ideas, would not the partial punitive identity be a single and
absolute criterion to configure the usurpation of administrative power, notably because
the SBCP penalties are restricted to the merely associative scope. In contrast, the
ethical-professional penalties reach the exercise of the medical profession, whether
within the scope of the specialty or not. Hence, it is said that, by way of example,
a suspension of associative rights with the SBCP cannot resemble, except in the nomenclature,
the effects of a professional suspension determined by the CRM, given the manifest
discrepancy of the effects of said penalties to the rights of the doctor and their
professional practice. Without this interference in the sphere of others’ attributions,
once the due legal process is respected and the adversary and full defense are offered
to the associate, the conclusion of misconduct and the imposition of an associative
penalty does not represent, in itself, any legal deviation, serving since it is yet
another legal instrument for the inspection of medical action and its incessant search
for excellence.
