Microcephaly and the Cornelia de Lange Syndrome

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The following article, by Professor Rogério Tadeu Romano was published on the Jus Navegandi portal.


Microcephaly is a rare neurological condition in which the person’s head is significantly smaller compared to others of the same age and gender. Microcephaly is usually diagnosed at an early age and is a result of the brain not growing enough during gestation or after birth.
Children with microcephaly have developed medical problems.
There is no cure for microcephaly, however, treatments performed in the first years help improve development and quality of life.
Microcephaly can be caused by a number of genetic or environmental problems.
Microcephaly is the result of an abnormal growth of the brain, which can occur in the uterus or childhood.
Microcephaly can be genetic.
Some other causes include:
• Malformations of the central nervous system
• Decreased oxygen to the fetal brain: some complications during the pregnancy or birth may decrease oxygenation to the baby’s brain
• Exposure to drugs, alcohol and certain chemicals during pregnancy
• Severe malnutrition during the pregnancy
• Maternal Phenylketonuria
• Congenital Rubella during the pregnancy
• Congenital Toxoplasmosis during the pregnancy
• Congenital Cytomegalovirus Infection.

Genetic diseases that cause microcephaly may include:
• Down Syndrome
• Cornelia de Lange Syndrome
• Cri Du Chat Syndrome
• Rubinstein-Taybi Syndrome
• Seckel Syndrome
• Smith-Lemli-Opitz Syndrome
• Edwards Syndrome
The normal circumference of a newborn’s head is at least 33 centimeters, which infants with microcephaly do not reach. According to the Ministry of Health, approximately 90% of the cases with this malformation are associated with mental retardation. However, development and quality of life improve with treatments performed in the first years. Some cases showed that it is possible to correct the anomaly with surgery.
The symptoms on adults due to this virus usually include fever, headache, body and joint pain, diarrhea, nausea and malaise, however, compared to dengue, the manifestation is much milder.
Brazil had an outbreak of microcephaly.
The discovery of 141 cases of microcephaly — the birth of babies with cranial malformation — in 44 municipalities of Pernambuco led the Ministry of Health to declare a public health emergency. Cases in Paraíba and Rio Grande do Norte were also investigated.
With the declaration of emergency, the Ministry of Health and other departments, which have been notified, may give priority to other matters in regards to their attributions. Bureaucracy must be diminished for purchases found necessary to contain the outbreak, controlling domestic flights when needed.
Therefore, a serious situation that requires vehement measures by the Federal Governments involved was verified.
The withholding of information related to the disease may be liable to prosecution.
Art. 269 ​​- The doctor who fails to denounce a notifiable disease to the public authority will face:
Penalty – 6 (six) months to 2 (two) years detention, plus a fine.

It is a crime with less offensive potential.
The Public Authority is the State body responsible for enforcing the laws or determinations of Government Authorities. It will be the Authority with capacity to look after the public health.
In turn, a notifiable disease is any disease that demands awareness by Government Authorities. In medicine and other sciences related to health, a disease is the disorder that affects a functioning organ, the psyche, or part or all of an organism, which is associated with specific signs and symptoms. It can be caused by external factors, such as other organisms (infections), or by internal dysfunctions or malfunctions, such as autoimmune diseases.
It regards a skeleton criminal legislation.
The doctrine teaches that it is a criminal offense, which was generally foreseen in foreign laws as a contravention. It consisted of the Code of 1890 (Article 378), thus, included the Italian Code (Article 717). As contravention, it was foreseen in the Tuscan Punitive Police Regulation of 1853 (articles 144 and 145), when referring to smallpox and other contagious diseases.
It is a crime of presumed danger.
Public safety is the object of judicial guardianship, involving the common danger resulting from the spread of contagious diseases in view of the omission of preventive measures.
Standing before us is an example of a skeleton criminal legislation, insofar as it provisionally ratifies health standards. Binding: “The skeleton criminal legislation is a wandering body in search of a soul.” There is one more example, which adds to the type of criminal offense of articles 178 and 269, of the Criminal Code, and art. 2, VI, of Law 1,521/51, among other examples.
Thus, there are criminal norms in which the written expression seems to be incomplete, for its incriminating type resents generality or indetermination.
The skeleton criminal legislation needs an equal or inferior hierarchy in order to fill the gap when seeking the assistance of other regulatory sources (complementary norm). In the case in question, it is important to understand the determination of the public authority, departments of the government with authority to carry out the purposes of the State.
The Brazilian legislation handled the matter with reference to the Regulations of the National Department of Health, approved by Decree 16.300 of December 31, 1923 (yellow fever, plague, cholera and coliform-related diseases, epidemic typhus, smallpox and alastrim, diphtheria, puerperal infection, ophthalmia neonatorum, typhus parasitic infection, tuberculosis, open tuberculosis, impaludism, in areas with the outbreak of anophelines, measles and other febrile illnesses with skin rashes, dysentery, epidemic cerebrospinal meningitis, infantile paralysis or Heide’s disease; trachoma; leishmaniasis; whooping cough; mumps; cold (influenza), epidemic angina, infantile diarrhea, food poisoning (article 445). Added to this is the Federal District Health Regulation (Municipal Decree 9.761 of May 21, 1945) and administrative acts of the state. We also intend Article 169 of the Consolidation of Labor Laws); Decree-Law No. 891 of November 25, 1938 (Article 27), among other regulatory documents.

The list of notifiable diseases is contained in Ordinance No. 5, dated February 21, 2006, of the Sanitary Surveillance Agency of the Health Department, which also specifies those that must be immediately reported within 24 hours. The matter is currently regulated by the Laws 6.259 of October 30, 1975 and 6.437 of October 20, 1977, with amendments by Law 9.695 of August 20, 1998, by Provisional Measure 2.190 – 34, 2001, and by Decree No. 78.231 of August 12, 1976.

It is malfeasance, for the active subject can only be a doctor, therefore, a pharmacist shall not practice it (RT 492/355). As said by Heleno Cláudio Fragoso (Lições de Direito Penal, volume III, 5th edition, page 205), on the contrary to the Italian law, the Brazilian criminal law does not require the health agent to have assisted or examined the person with the illness, and concludes: “but it is clear that the physician can only make a report, with the required seriousness and responsibility, after he/she personally certified the existence of the disease.” In the type of criminal offense, there is an exception to the duty of secrecy that the physician has in regards to what is inserted in Article 154 of the Penal Code. Guilherme de Souza Nucci (Código Penal comentado, 8th edition, page 961), also teaches that the active subject can be any person. Society is the passive subject.

The crime is still formal.

To Guilherme de Souza Nucci, (from the work previously mentioned, page 962) it is a malfeasance of mere conduct (a crime that does not present any type of natural result). In turn, Heleno Claudio Fragoso (from the work previously mentioned, page 205), remembering that the objective of the crime consists of withholding a notifiable disease from the public authority, considered it a crime of pure omission (violation of order or warrant and not of prohibition), not admitting attempt, which we commonly agree to. The crime results from the violation of a duty of activation, due to simple disobedience, for it is a case of pure omission. The teaching of Magalhães Noronha (Direito Penal, Volume IV, 17), also states that the crime is not in violation of the legal duty to prevent the event (for this is a characteristic of willful crimes of omission), it is in the simple abstention of due activity. It is also a crime resulting from a single criminal act and that can be committed by a single person.
The subjective element is the generic negligence of danger.

Rogério Tadeu Romano

Retired Regional Attorney General. Professor of Criminal Procedure and Criminal Law. Lawyer.

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