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On The Right Of The Patient's Consent

Posted on:2012-09-16Degree:MasterType:Thesis
Country:ChinaCandidate:L P TianFull Text:PDF
GTID:2166330332497159Subject:Civil and Commercial Law
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With the development of society, people's conscious of the right of self-determination is raising. In the doctor-patient relationship, the right of the patient's consent is receiving more and more attention, and the model of doctor-patient relationship is getting rid of all previous following the doctor into the model of the patient can participate in doctor-patient relationship. However, compared to other countries, the provisions of the right of the patient's consent are too simple. Many practical problems can't find legal basis. There is an urgent need to intensify legislation and research about this.Start with the right of the patient's consent, this article will conduct a systematic study of the patient's consent. The basic theories of the right of the patient's consent is reflected in the following areas:Firstly, the legal content of the right of the patient's consent, the theory of the right of the patient's consent originated in the theory of consent, which then is applied to the medical field is the patient's consent.However, with the development of society and enhancement of civil rights awareness, a more detailed requirement is added to the patient's consent, which is the obligation of the doctor to disclose,and they together constitute the right of informed consent. The right of the patient's consent is a formation right, the unilateral actions by the patient can change the legal relationship between doctors and patients. The scope of the right of the patient's consent applied to is the broad medical practice. Secondly, the legal basis of right of the patient's consent:the changes of the model of the doctor-patient relationship and the nature of the doctor-patient relationship, consumer protection, the results of respect for the patient's personality, one of the justified bases of the medical practice. Thirdly, to investigate the legislative of the right of the patient's consent, mainly through the list of foreign countries and our country.To exercise the right of the patient's consent needs to notice the following problems:Firstly, the subject of the right of the patient's consent, the direct subject of the patient's consent is the patient himself, but he may not have ability to consent, the consent on behalf of the patient which is made by other people, this article discusses the problem from agency and legal representation. Secondly, the contents of the right of the patient's consent, it contains not only the medical act itself, but also the risk of the act and the possible consequences of the damage. Thirdly, to exercise the right of the patient'consent need the following effective elements:the ability to make consent, which have three theories, the criterion of civil capability, criminal responsibility, ability of recognition; then the patient's consent is voluntary, patients are free to make consent, not make under threats, fraud or undue influences, the patient's consent is made by the patient himself; last but not least, the patient's consent must not violate the law and the public order and good morals. The patient's consent is a manifestation of self-decision, but it must be made under the law and the public order and good morals.The main situations about that the right of the patient's consent is invaded reflected as following:Firstly, the medical practices beyond the agreed scope, the actor have to the take the tort liability of the part beyond the agreed scope. Secondly, the medical practices which breach of the obligation to disclose, the actor have to the take the tort liability. Thirdly, emergency medical practices, even they invade the right, the actor need not to take tort liability. Fourthly, mandatory medical practices, which invade the patient's consent, but the actor need not take the tort liability.To improve the right of the patient's consent from the following aspects:firstly, to determine the criteria of the ability of patient's consent, our country can learn from the relevant provisions of civil capacity, and mainly use the criteria of the ability of recognition. Secondly, to regulate the scope and responsibility of the subject of the patient's consent, people who have ability to make consent can decide by himself, people who don't have ability to make consent can be represented by agent or legal representative to make the decision to consent or not, people who have certain ability to consent can participate the decision within the scope of his ability to consent. Thirdly, to define the effectiveness of the patient's consent, in our country, the theory of consent is the core basis to eliminate of illegality is only theoretical, lack of legislative support, while the consent can be raised to tort liability defenses. Fourthly, to give full play to the judge's discretion, regardless of identify ability of patient's consent, or whether the represented of consent is on behalf of the patient are required the judge to decide by discretion.
Keywords/Search Tags:The Right of the Patient's Consent, Medical Practice, Medical Torts, Doctor-patient Relationship
PDF Full Text Request
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