Specialist Failure to Assist Attorneys

The crime of failure to assist, typified in Arts. 195 and 196 of the Spanish Criminal Code, is one of the few cases in which the criminal legal system sanctions the mere inaction of those morally obliged to act. The protected legal interest is human solidarity understood as a legal duty of minimum assistance: when a person is helpless and in manifest and serious danger, every citizen able to assist without personal risk is obliged to do so, either directly or by requesting help from others (Emergency Services 112). Supreme Court case-law has developed a rigorous canon distinguishing simple civic unsolidarity — not punishable — from genuinely typical conduct.

The Code articulates three differentiated modalities. The common modality of Art. 195.1 sanctions those who do not assist a helpless person in manifest and serious danger when they could do so without risk to themselves or third parties. Art. 195.2 equates the omission of those who, being unable to provide personal assistance, fail to urgently request help from others. Art. 195.3 contemplates the aggravated modality of fleeing the accident scene: it punishes those who, having caused an accident with risk or danger to the victim — whether by negligence or by fortuitous event —, leave the scene without assisting. Art. 196 typifies the special crime of denial of healthcare: healthcare professionals (doctors, nursing staff, technicians) who, being obliged by their guarantor position, deny or abandon healthcare services when this results in serious risk to health.

Penalties are graduated according to the modality. The common omission of Art. 195.1 carries 3 to 12 months' fine; when the victim is harmed by the omission and the risk was foreseeable, the penalty may reach 18 months. The omission to request help from others (Art. 195.2) follows the same regime. The flight from the accident scene of Art. 195.3 sanctions with 6 months to 4 years' prison and driving disqualification of 1 to 4 years when the victim suffered the accident through the omitter's negligence; if the accident was fortuitous, the penalty is 3 to 6 months' prison. The denial of healthcare under Art. 196 imposes the penalties of Art. 195 in their upper half and, additionally, special disqualification from employment or public office, profession or trade for 6 months to 3 years. On all these penalties, civil liability operates for the consequences derived from the omission (lost income, moral damage, sequelae, medical care), which in cases of victims with permanent injuries reaches very significant amounts under the scale of Law 35/2015.

Technical defense relies on several consolidated axes. The first is own or third-party risk: the criminal type requires that the omitter could assist "without risk to themselves or third parties"; when assistance entailed real and serious danger (entering a burning vehicle, jumping into torrential waters, exposing oneself to armed aggression of the aggressor), the exemption operates. The second is the invincible mistake of fact: if the subject could not reasonably perceive the danger (minor impact with no visible victims, absence of signs of gravity), it excludes the type (Art. 14 CP). The third is fulfilment of duty by requesting help from others: case-law is clear that calling 112 immediately and effectively covers the legal duty when the subject lacks training or means to intervene directly. The fourth is the concurrence of prior effective assistance: when other witnesses have already provided sufficient assistance, the individual duty dilutes. And the fifth is the post-traumatic shock state certified by expert, which may give rise to the exemption of Art. 20.6 (insurmountable fear) or, at least, to a mitigating factor of transient mental disorder.

In current forensic practice, failure-to-assist proceedings concentrate in two major contexts. The first are traffic accidents with flight: the integration of the Art. 195.3 type with the underlying negligent crime (negligent injuries or homicide) generates a particularly burdensome real concurrence of crimes, aggravated after the reform of Law 6/2014; prosecution increasingly pursues those who flee the accident scene with rigour, even where victims show no obvious injuries. The second context is the healthcare scenario: strikes with insufficient minimum services, abandonment of hospital shifts, denial of assistance in emergency triage, omissive malpractice in home emergencies. The most recent case-law has reinforced the guarantor position of healthcare personnel and the criminal liability of service managers. At Alonso Sala we intervene with forensic medical experts to prove causality between omission and outcome, psychological experts to support the shock state where appropriate, and chronological reconstructions supported by cameras and geolocation. We treat each file with the conviction that in these crimes — where prison often depends on a single subjective element: could and should the subject act? — the difference between conviction and acquittal is built in the first moments of the investigation.