On The Informed Consent Of The Patients In Chinese Medicine

Though the informed consent, originated in eastern countries, has becomecommon in modern medicine, it encounters challenges from our local traditionalmedicine during the clinical practice, and some even doubts the need to protect theinformed consent in our country. Such questioning is mainly concerned about twoaspects, i.e. whether the informed consent is of universality theoretically, andwhether its theory caters to the practical need of local medicine when it operates inthe special medical environment of China. Considering that, this paper is intended toanalyze the paradoxical relationship between the universal informed consent and theunique Chinese medicine from a legal philosophy perspective, and further discussthe practice of the informed consent in local medicine.The core ideas of this paper are as bellow. Firstly, patients’ informed consentcomes from one’s autonomy, to be specific, it is an inevitable extension of freedom,reason, dignity, responsibility and any other basic value of autonomy. As for Chinesemedicine, there is a certain legitimacy in patients’ informed consent, which isderived from their autonomous appeal. Autonomy lays the foundation of theinformed consent’s theoretical bases, in which it not only gives the informed consenta substantive meaning, but also defines its form regulation, so that the informedconsent appears to have universality in right possession and procedural characteristicin right practice. Secondly, the current universalism legislative mode only admits theuniversality of informed consent based on the sample of western medicine, whileignoring the particularity of informed consent in Chinese medicine. Consequently, itis somehow inappropriate in Chinese medicine, as it cannot effectively satisfy thedemand of right in Chinese traditional medicine, which causes the latent risks ofpractical use of informed consent in Chinese medicine. Therefore, we need acompatible informed consent legislative mode that can effectively respond to theautonomous demand of patient who seek Chinese medicine, and meanwhile, take thedifference of Chinese and western medicine into consideration. Thirdly, the construction of informed consent right system should stick to the principle of theunity of content and form, and insist the priority of procedure over entity. Besides, itshould emphasize the standards and content for Chinese medicine practitioners tofulfil their duty of informing, as well as, patients’ agreement ability, the legal limit ofinformed consent right, codetermination and expression procedures and so on, whichwill make informed consent right of patient who seeks for Chinese medicine begin toalter from abstract to concrete, and from idealistic to legal.The novelty of this paper is as follows. Firstly, the theoretical base of informedconsent right in Chinese medicine is reasoned from a patient’s autonomy angle, inwhich it illustrates the realistic and legal basis of informed consent right in Chinesemedicine and verifies the legitimacy and necessity of informed consent right inChinese medicine, thus deepening the theory research of informed consent right.Secondly, this paper breaks the limitation of traditional theory research, whichstresses the content, element and other entity information of informed consent right.Instead, it analyze the right structure of informed consent at the form regulation andprocedure level, in which it puts the informed consent in Chinese medicine into aprocedure analysis mode. Hence, by a “priority of procedure over entity”institutional design, it improves the operability of informed consent right in Chinesemedicine and extends the theoretical research of it from the category of entity to thecategory of procedure, which enriches the right system. Thirdly, this paper analyzesthe “being similar to pan-western medicine” of the current informed consent rightlegislation and studies the application of it. Then based on the criticism of theinappropriateness of the universalism legislation mode, it puts forward the idea ofbuild an informed consent right legislation mode in which Chinese medicine iscompatible with western medicine, thus providing a clear theoretical guidance ofimproving the informed consent legislation in Chinese medicine. Fourthly, this paperexplores the particularity of the informed consent legislation in Chinese medicine.Based on that, this article builds a rule system for the realization of the informedconsent in Chinese medicine and constructs the system for the informing duty ofChinese medicine practitioners and herbs, as well as patients’ consent right, thusproviding an important theoretical support and clear rule guidance for legislation and practice of the informed consent in Chinese medicine. Fifthly, this paper takes a deepdemonstration study on the current situation of the informed consent in Chinesemedicine, which breaks the limitation of the present regularity research and enhancesthe effectiveness of the system building of the informed consent in Chinesemedicine.This paper is organized as follows:The first part discusses the theoretical basis of the informed consent. Throughthe panoptic analysis of the formation and development of the informed consent, itexamines the propelling factor behind the informed consent, believing that theinformed consent comes from one’s autonomy, to be specific, it is an inevitableextension of freedom, reason, dignity, responsibility and any other basic value ofautonomy. Based on autonomy, this paper makes a thorough investigation of theinformed consent from two angles: entity and form. For entity part, the informedconsent includes two fundamental rights, i.e. the right to know and the consent right,which is composed of4factors involving the informing, understanding, consentability and voluntariness of information. For form part, as a behavior pattern, theinformed consent has its prescriptions in two aspects, one is the universality in rightpossession, and the other is the procedural characteristic in right practice. In addition,the procedural characteristic is also embodied in the forming procedure ofcodetermination and expression procedure of informing and promise.The second part examines the value relation in the Chinese medicine’sparticular quality and patients’ autonomy, and verifies the legitimacy and necessityof the informed consent in Chinese medicine. By reviewing the development ofdoctor-patient relationship in China, we think that Chinese medicine has thehistorical quality of responding to autonomy, and the informed consent in Chinesemedicine has the legitimacy of existence as it is originated from the patients’autonomy and moral pursuit. At the same time, the informed consent in Chinesemedicine also comes from the realistic appeal from the expose of the risks ofChinese medicine and the legal appeal from illegal acts of Chinese medicine, thusproving its necessity of existence. Therefore, by examining the difference of Chineseand western medicine, this paper delves deeply to find the particularity of the informed consent against the Chinese medicine background and determines theprincipal contradiction in the construction of the informed consent from a Chinesemedicine angle.The third part reflects the problems existing in the legislation and practice of theinformed consent in Chinese medicine and constructs the informed consentlegislation pattern in which Chinese and western medicine are compatible with eachother. Under the universalism legislation mode that is based on the sample ofwestern medicine, the informed consent encounters interior crises, one is thedistinction between value goal and fitness goal of the informed consent, so theinformed consent is hard to respond to the right appeal in the traditional medical.Another crisis is that the informed consent stops at oath value with its fuzzy content.During the diagnosis and treatment of Chinese medicine, the informed consentappears to be inappropriate under the universalism mode, and owing to thepersistence of form and value to itself respectively, the informed consent in Chinesemedicine presents formalism and benefic absolutism. Consequently, this paperproposes to build Patient Rights Protection Law that makes similarities anddifferences of the informed consent in Chinese and western medicine compatiblewith each other.The fourth part construct and discuss the right rule system of the informedconsent and define its threshold. At the entity level, this paper sets “the doubleinforming standard for rational patients and concrete patients”, which embodies theinforming duty of Chinese medicine into two aspects, one is the rationally expectedcondition description of normal patients and the other is the special need conditiondescription of certain patients, so that it clearly defines the informing content ofChinese medicine and “the recognition ability standard” for judging the patients’consent ability, thus excluding the protective medical care in the Chinese medicinefield. At the form level, this paper constructs the doctor-patient codeterminedprocedure based on the patients’ autonomy, and clearly define the writing expressionform to inform in a personalized way. At last, this paper puts forward “the lowestlimit for knowing principle”,“the lowest limit for variety protection principle” and“the lowest limit for national secret principle”, which clarifies the legal limit in the informed consent in Chinese medicine.