Jellinek has defined “status” as the relationship between the State and the individual that qualifies to the last one. His theory distinguishes four types: passive or subiectionis, negative or libertatis, positive or civitatis and active or status of active citizenship. Besides controversies about its validity, it is aimed here to relate Jellinek’s contribution to the conception of informed consent developed by the Spanish Constitutional Court, as a duty to refrain for healthcare professionals (STC 37/2011, among others), i.e. a denial of their power in Hohfeldian words, or a defence right.
This analysis focuses on negative and positive statuses, since both are suitable for the structure of informed consent. The issue is about the position of defence rights within Jellinek’s theory and whether it is possible to use it to conceptualize contemporary fundamental rights