Research On Legal Issues Of Medical Decision-makin

This article is based on the legal issues of medical decisions.And the whole paper can be divided into the following parts: the introduction,the first to fourth chapters,and the conclusion.The introductory part clarifies the origin of this issue,firstly.In the decision on the medical plan,the main issues in the medical decision rules are: Frist,what is the benefit of his protection after the patient decides to become a right.This question is related to the determination of the limits of the patient’s right to self-determination.Second,what is the justification of medical decision rules that allow other people to make medical decisions on behalf of others? This is related to when and how others make decisions,and how the law evaluates when others decide to deviate from the justification.Third,How to position physicians’ rights and obligations and privileges in the process of realizing patients’ self-determination? Fourth,in the medical decision rules,how to coordinate patient self-determination rules,other people’s decision-making rules,and physician privilege rules can form a systematic medical decision-making rule with mutual cooperation,which can effectively protect the rights and interests of patients in the process of medical decisions.This paper mainly discusses the above issues.In the definition of the scope of the study,the medical decision referred to in this paper refers to the final decision on the treatment plan of the patient,and the question of who ultimately makes the final decision on the treatment plan implemented on the patient;The legal field of research is mainly to study the rules of medical decision-making in the field of private law,and only involves the limitation of public power on medical decisions within the limits of patient rights.In terms of patient type,the adult patients are mainly used as the premise of the research and discussion in the general case of the subject,and the problems involving the juvenile patients are only discussed as special cases;The main problem to be solved in research purposes is the conflicts and contradictions between patient decisions,physician decisions,and decisions made by others.On the basis of finding a balance between patient decisions,physician decisions,and the others decisions,explore how to build coordinated,better medical decision rules.Finally,the research methods,research overview and innovations of this paper are introduced.The first chapter of this paper is “Patient Self-Decision and Its Rights”,which discusses the development of specific rules for patient self-determination in historical development untilthe patient’s self-determination is confirmed.This part combs the history of the development of corresponding laws and regulations,answering why the principle of autonomy of will was not directly applied to the self-determination of medical scheme by the continental civil law in the development of modern civil law in the 19 th century.But through another path to make this self-determination a basic human right,and then come back to implement the specific legal norms of civil law.It also analyzes the theory of self-determination and the self-determination of patients,and discusses the particularity of patients’ elf-determination and the basis of argument that should be paid special attention to.In addition to the general theory of self-determination,the ethical theory of the body and the changes in the definition of health in medical theory provide a theoretical basis for patients’ self-determination.The main rules for patient self-determination are informed consent rules,advance directive systems,and rules governing patients’ refusal to treat medical treatment.The first two are rules that guarantee patients’ self-determination,and the third item is about the boundary issue of patient self-determination.Finally,patient self-determination needs to be based on the ability to make decisions.The principle of respecting the patient’s self-determination emphasizes the maximization of the patient’s ability to decide.The behavioral system of civil law cannot be fully applied to the judgment of the patient’s ability to determine.The principle of presumption of ability should be prevailed and case-checked to maximize the protection of patients’ ability to use self-determination.When a patient lacks the ability to make decisions,the medical decision will be transferred to someone else’s medical decision or the doctor’s privilege to complete the decision.The discussion of this issue also has a role to play in the past and the future.The second chapter of this article is "the medical decision rule made by others ".The "Others" in this chapter refers to the third person besides the patient himself and the Physician(or the hospital).The rule of medical decision by others should be based on the key interests protected by the medical decision maker to assist patients to realize their right of self-determination.This not only conforms to the theory of capacity and legal subject status in civil law and the requirement for patients’ interests,but also conforms to the medical ethical principles and professional ethics that doctors should abide by when implementing medical decisions.The authorization rules and supervision rules for medical decisions made by other people should be designed according to the above justification basis.Ensuring that others are medically determined is still based on respect for the patient’s rightto self-determination,and is not an exception to this principle.The provisions of the Tort Liability Law of our country on the medical decisions of close relatives are only rules for regulating the behavior of doctors,and are not about regulating the behavior of medical decision makers.At the same time,the medical decision-making rules should not be located under the guardianship system of the General Principles of the Civil Law.Thus,there are no corresponding supervisory rules for medical decisions of close relatives in China.The third chapter is "Medical Decisions of Physician: Duties and Privileges of Physician".This chapter combines the changes in medical history and disease pedigree to reflect on medical paternalism.The traditional Hippocratic view of medicine is based on the opposition between supernatural treatments such as witchcraft that consumes patients and demonizes patients.Therefore,traditional physicians’ beliefs about how to benefit patients are inherently a kind of protection and respect for patients.The earliest medical paternalism was not a decision to oppose patient autonomy.The thorough anti-medical paternalism perspective of “medical behavior is an injurious behavior” is based on the fact that the trust relationship between doctors and patients was extremely destroyed after the Middle Ages,medical technology penetrated deeply into the human body,and the distinction between the boundaries and the role of the physician for the guardian of the patient’s interests is questioned.Extreme patient self-determination,pushing doctor-patient relationship to the consumer-service provider model,is another damage to patient rights.Medical paternalism is not worthless or an absolute violation of patient autonomy related to dignity.Modern paternalism emphasizes that physicians still adhere to the principle of good faith and the professional ethical responsibility of not harming the principle on the basis of respecting the patient’s self-determination.Respect the patient’s autonomy,but does not absolutely obey the patient’s autonomy,has the independence of his own professional judgment,and emphasizes the responsibility of protecting the patient’s subjectivity within the doctor-patient relationship.This responsibility is embodied in the medical decision rules to substantial protection of patient self-determination,responsible performance,and protect the patient from third-party medical decisions.Modern medical paternalism under the emphasis of physicians’ responsibility.Such as physician discretion rules,treatment privilege rules,and emergency exemption rules still maintain the basic concept of respecting patient autonomy.The so-called "privilege" emphasizes the exception rather than the supremacy.There are regulations on protective medical care for doctors in China.However,law does not clarify the rules underwhich the rules are formulated.In practice,it is only used as a basis for doctors to expand the scope of decisions made by others.It does not really reflect the doctor’s obligation to protect patients.Urgent immunity is an important privilege for physicians to protect patients’ substantive self-determination.When the physician is unable to complete the notification obligation and obtain valid consent,he or she chooses to perform the treatment obligation and violates the obligation to inform.The law exempts the physician from violating the obligation to inform.The pre-emptive indication that is in effect is clear evidence of the patient’s wishes and can be used to rule out the treatment of the physician in an emergency.The fourth chapter is "Suggestions on the improvement and integration of medical decision-making laws in China".Through the discussion of the above three chapters,the medical decision rule is based on the principle of respecting the patient’s right to self-determination.The patient self-determination rule,the decision rule of others and the privilege rule of the physician are systematic rules that are connected and cooperate with each other.In the absence of a unified principle,the rules are scattered and prone to conflicts,resulting in damage to the rights and interests of patients in practice,but the law cannot protect or provide relief.The medical decision rule should first determine the principle of respecting the patient’s right to self-determination,and then determine the principle of assisting the patient’s decision,the principle of necessity,and the principle of patient benefit as the basic principle for regulating the behavior of others and physicians.The legal norms concerning medical decisions should pay attention to the regulation of the medical decision process.Before the medical plan is implemented in the patient’s body,there should be procedural normative protection for medical decisions.Do best to avoid unrecoverable damage from patient rights before medical treatment.The provisions of Articles 55 and 56 of the Tort Liability Law can partial solution to problems in patient self-determination and physician privileges through appropriate interpretation methods.However,it is still necessary to improve the legislation to achieve the integration of patient self-determination,other people’s decision-making,physician rights and obligations and privilege-related rules.Finally,it is the "conclusion".It summarizes the basic position of this article on the legal issues of medical decisions,and explains the unfinished issues and shortcomings of this paper.