An accusation of refusing urgent care can be particularly burdensome for those working in healthcare: it often stems from an emergency department visit, a request for an examination, a delay perceived as unjustified, or a clinical choice contested after the event. Not every unperformed treatment constitutes a crime, however. It is necessary to distinguish between the undue refusal of a due and urgent act and a motivated clinical decision, an organizational issue, or respect for the patient's will.
In this guide, I will explain the elements of the accusation under Article 328 of the criminal code, why the professional's qualification and the nature of the urgency matter, and which facts allow for a correct reconstruction of what happened. We will also examine how informed consent can change the legal characterization of an apparently omission-based conduct.
When the Refusal of Urgent Care May Invoke Article 328 of the Criminal Code
Article 328 of the criminal code does not punish every healthcare delay. The provision concerning the refusal of official acts applies to public officials or persons entrusted with a public service who unduly refuse an act of their office that must be performed without delay for reasons including hygiene and health. The penalty provided under the first paragraph is imprisonment from six months to two years. The current text of the criminal code must be read bearing in mind that the provision does not introduce a generic obligation to cure the patient nor does it replace medical judgment.
Therefore, it is not sufficient for the accusation to state that a service was not rendered or that the patient received care different from what was expected. A specific due act must be identified: for example, an examination, an assessment, an assistance intervention, or the activation of a pathway imposed by the duties performed. It must also be verified that such an act truly fell within the duties of the healthcare professional involved during that shift, in that facility, and at that stage of care.
The offense also requires a qualified subjective position. Merely being a doctor, nurse, or other healthcare professional does not automatically trigger the application of Article 328 of the criminal code: the service performed and the concrete functions exercised are what matter. Qualification derives from effective activity, not from the profession alone. Therefore, placement in a public, affiliated, or private facility, the modalities of the assignment, and the powers actually granted can change the perimeter of the charge.
Healthcare Urgency Must Be Concrete and Actual
"Without delay" does not simply mean "as soon as possible." Under Article 328 of the criminal code, the act must be required by health reasons that do not allow for a postponement compatible with the protection to be ensured. Urgency must be reconstructed in light of the conditions present at the time the healthcare professional acts or fails to act, rather than solely looking at the subsequent outcome of the event.
Therefore, the detected symptoms, available clinical parameters, triage, information provided by the patient or rescuers, existing prescriptions, the role assigned to the professional, and the possibility of promptly activating other resources all matter. A subsequent deterioration does not in itself demonstrate initial urgency. It may be a factor to consider, but it does not replace the verification of what was knowable and mandatory at that precise juncture.
Refusal, Deferral, and Choosing a Different Pathway
Refusing does not always coincide with postponing or referring elsewhere. A clear and unjustified denial presents a different problem from a choice that arranges a transfer, calls a competent doctor, requests preliminary examinations, or assigns a different priority based on clinical data. Even a contestable decision does not automatically become a criminally relevant refusal.
The decisive question is whether the conduct left an immediately due act unanswered or whether it activated a suitable solution, under the circumstances, to guarantee continuity and safety of care. Concrete motivation makes the difference. The lack of instruments, specialized competence, or immediate availability can only become relevant if it emerges that the problem was managed in a manner consistent with the duty of care and not used as a pretext to evade the act.
Patient Consent Can Exclude the Duty to Impose Care
The healthcare professional cannot freely substitute themselves for the patient's will. Law No. 219 of 2017 establishes that no healthcare treatment can be initiated or continued without free and informed consent, except in cases expressly provided by law. The same regulation recognizes the right of a capable person to refuse or revoke consent to an assessment or treatment, with documentation of the decision in the medical chart and electronic health record.
This point is essential for anyone accused of omission: the patient's refusal is not equivalent to the professional's refusal. If a properly informed person refuses treatment, the physician must respect their will within the limits provided by law. Article 1 of Law No. 219 of 2017 on informed consent also provides that, in emergency or urgent situations, the physician and the team shall ensure necessary care while respecting the patient's will when clinical conditions and circumstances allow it to be ascertained.
The documentation of consent, dissent, or revocation is not an isolated formality. It must make comprehensible what was proposed, what information was provided, what decision the patient expressed, and whether their condition allowed them to manifest it. A signature devoid of context may not be sufficient. Conversely, a complete clinical reconstruction can clarify that the lack of treatment did not stem from an undue evasion of service duties.
Clinical Decision Does Not Coincide with the Refusal of an Official Act
Article 328 of the criminal code requires an undue and voluntary refusal. For this reason, it is necessary to separate the hypothesis in which a healthcare professional consciously evades a mandatory urgent act from the one in which they carry out a clinical evaluation—perhaps later debated—or encounter an organizational obstacle. Criminal liability for the refusal of official acts is not a general formula to contest any therapeutic choice deemed incorrect.
If the core of the dispute concerns diagnosis, therapy, monitoring, or the coordination of care, different legal profiles with different prerequisites may come into play. Harm to the patient does not automatically transform the act into an offense under Article 328 of the criminal code. For each hypothesis, the duty incumbent upon the individual, the conduct concretely enforceable, the required subjective element, and, when necessary, the link between omission and event must be proven.
It is equally important not to confuse the first paragraph of Article 328 with the second. The latter regulates omission or failure to respond to a written request from an interested party, outside of urgent cases, and provides for a mechanism linked to a thirty-day term from receipt of the request. Urgent care belongs to a different plane. In an urgent healthcare situation, the point is not to wait for that term, but to establish whether an unpostponable act existed and whether there was an undue refusal.
Facts That Guide a Criminal Defense
The defense begins with the precision of the charge. It is necessary to understand which act the prosecution considers refused, at what time, by whom, and for what reason it would have been immediately due. A generic dispute regarding the fact that the patient did not receive care does not allow for indiscriminately overlapping the conduct of those who performed triage, those who were on duty, those with specialized competence, and those who made organizational decisions.
The medical record, nursing notes, triage logs, consultation requests, prescriptions, service communications, and schedules can be relevant because they place the facts in their real sequence. Chronology is often decisive. It can show that an act was performed, that it was requested from another department, that the patient refused, or that the contested urgency had not been reported or was not recognizable with the data available at the time.
It is advisable to safeguard available documents and not intervene on their contents to retrospectively correct the reconstruction. If it is necessary to integrate a record according to the facility's rules, the integration must be recognizable and must not erase what originally appeared. Transparency and traceability protect the reconstruction of facts. Informal communications, late recollections, and explanations not aligned with the documents can instead make it more difficult to clarify a legitimate choice.
Alternatives to Consider After the Accusation
The first alternative is to clarify whether the act truly falls within the contested norm. When the qualification required by Article 328 is lacking, a specific act was not due, or the urgency is not concrete, the legal problem changes. The same applies when the healthcare professional activated an adequate alternative care pathway, when intervention was materially precluded by documented clinical reasons, or when the patient consciously refused treatment.
If, on the other hand, an urgent request, a precise functional duty, and a groundless denial emerge, attention must be focused on the context preceding the refusal: available information, roles, operational possibilities, communications with the team, and decisions made. The defense does not consist in denying urgency in the abstract. It consists in verifying whether the accused person was bound to perform precisely that act, at that moment, and whether there was an undue choice not to do so.
A timely comparison between the allegation and documentary sources also helps to avoid instinctive responses. Statements made without an orderly reconstruction can confuse different planes: the patient's distress, a department issue, a communication error, and the contested crime. Each plane requires its own facts. If you have received a notice, a summons, or a request for clarification, you can contact me to examine the charge and the documents already available.
Frequently Asked Questions
Can a private healthcare professional be accused under Article 328 of the criminal code?
Not automatically. Article 328 of the criminal code requires that the person hold the qualification of a public official or a person entrusted with a public service in the performance of relevant functions. The professional title of doctor or nurse is not enough on its own. It is necessary to identify the service provided, the concrete assignment, and the relationship between the contested act and those functions.
Does a diagnostic error amount to a refusal of urgent care?
No, these are different planes. A diagnostic error can raise different issues, but it does not alone demonstrate an undue refusal of an official act. Article 328 of the criminal code requires the identification of a due and urgent act, as well as a voluntary and unjustified choice not to perform it.
Does a patient who refuses treatment always exonerate the healthcare professional?
The patient's refusal is an essential element, but it must be reconstructed. The will must be free and informed and, whenever possible, documented. The person's capacity to understand, the information received, the conditions of urgency, and the potential existence of specific rules allowing mandatory treatments all matter.
Is a delay in examination sufficient to constitute the crime?
Delay alone is not enough. It must be demonstrated that there was an official act to be performed without delay for health reasons and that there was an undue refusal. Available clinical data, competing priorities, roles, and actually activated activities serve to distinguish a waiting period from a criminally relevant denial.
What documents can clarify the healthcare professional's position?
Documents that reconstruct timelines and decisions are useful. Medical records, triage logs, prescriptions, consultations, assistance notes, shifts, and service communications can indicate what act was requested, who was responsible for it, and what was done. Their value depends on consistency with the real sequence of facts.