A eficácia da autocomposição na resolução de conflitos ético-profissionais: uma análise jurídica sobre a possibilidade de conciliação em denúncias sobre ética medica nos conselhos regionais de medicina

Abstract

This monograph evaluates the legal feasibility of establishing conciliation as an appropriate and effective means of resolving ethical disputes, which are administratively investigated by the Regional Medical Councils. That said, the increasing litigation in medical relations presents a current and significant challenge for both the judicial and, especially, the administrative apparatus. Thus, as admitted by the Code of Ethical-Professional Procedure for Medicine, CFM Resolution nº 2.306 of March 17, 2022, conciliation is an auto-compositional method allowed in the investigative preliminary inquiry phase, pre-procedural, of an eventual ethical-professional infraction in medical activity, and it can offer an effective, swift, and satisfactory result for the citizen seeking the adjudicating jurisdiction of the Councils that oversee medical practice. It can, therefore, be used and promoted with the intention of assisting in the resolution of conflicts involving the object of the present work. It is also understood here that the Regional Medical Councils can take efficient actions for adequate conciliation between the parties. These Councils, instituted by Law 3.268 of 1957, are constituted as special public autarchies, or sui generis, and are territorially established for each Brazilian state. Given this, the general objective of the present work is to analyze the viability, from a practical and legal point of view, of adopting conciliation as an effective solution to the growing demand for complaints involving medical law in the Regional Medical Councils. Also observing its legal and procedural limits and its efficacy in different matters and according to the nature of the complaint. In this light, the research was developed from a qualitative approach, using the bibliographic and documentary research method. For this, specific legislations were analyzed: such as the Medical Ethics Code, CFM Res. nº 2217/18, the Code of Ethical-Professional Procedure for Medicine, CFM Res. nº 2306/22, subsidiarily the Civil Procedure Code, Criminal Procedure Code, and the Law that provides for the Medical Councils. The results point to various attitudes, practices, and regulations that can contribute to the increase of auto-compositional means in the resolution of ethical-professional conflicts, whether through: the creation of chambers or nuclei of conciliation/mediation in the CRMs; training of employees, counselors, and conciliators; dissemination of auto-compositional methods as an effective tool; homologation of external agreements; and expansion of the normative provision of these methods. Finally, it is important to emphasize that the possibility of conciliation was foreseen only from 2022 with CFM Resolution nº 2.306/2022, which makes it a possibility still little studied in the ethical-professional scope. This, thus, reinforces the contribution that this work seeks to achieve in academia and, potentially, within the administrative and regulatory structure of the Councils.