On The Right Of Informed Consent

In the course of medical services, patients have the right under the clinical information provided by doctors to make their own medical decisions , that is the right of informed consent. The key to realization of the right of informed consent is the exercise of this right. This paper first outlines the right of informed consent, and then introduced the details of the exercise of the right to informed consent. Finally, this paper points out the current problems of exercise of the right of informed consent in our country, and proposes the legislative and judicial ideas for the completion of the exercise of the right of informed consent.The full text is divided into three parts.The first part is a summary of the right of informed consent, firstly the concept of the right of informed consent and the legal characteristics are introduced, and the right of informed consent is an exclusively civil rights of patients, and ironically the concrete manifestation of the right of life, the right of body and the right of health. Then the Source and development of the right of informed consent are expounded, and the present legal basis for the right of informed consent are analyzed .Then the right of informed consent consists of two parts, patients being informed and patients' consent.The second part is an exposition of the exercise of the right of informed consent, firstly the subject, the object and the scope of the exercise of the right of informed consent are introduced, then following by analysis of the valid elements of the exercise of the right of informed consent, elements including the patients' voluntary, decision-making competence, as well as the understanding of the nature of medical information. Then making a detailed analysis of decision-making competence that is the crucial element of the exercise of the right of informed consent and one of the focuses in the text .During the process of the analysis of the decision-making competence, introducing the concept and the structures of the decision-making competence, the decision-making competence includes the capacity of understanding and communication, and the capacity for reasoning, as well as a set of values. The criteria for judging decision-making competence in the report of the President's Commission of the United States is introduced and the current scholars' perspectives of decision-making competencies are analyzed. The decision-making competence is also called the capacity of commitment or capacity of consent, the author agrees that the patient's consent belongs to the quasi-civil legal acts, Civil legal acts and quasi- civil legal acts are both acts of representation indication, unless specified by law, quasi-Civil legal acts shall be permitted the provision of civil legal acts. Therefore patients' decision-making competence should belong to capacity, the criteria for judging decision-making competence is to be the standard of capacity. Then focusing on the circumstances of the agents exercising the right of informed consent, the legislative and judicial practice of the exercise are introduced in the United States, Australia, and other countries, as well as Taiwan in China, The agents include proxy and legal proxy, the scope of the agent exercising the right of informed consent is limited, both judicial review and Medical Ethics Committee's review are Supervising the agents exercising the right of informed consent, there are two principles in determining the agents' exercising, substituted-judgment doctrine and best interests doctrine. Then the form and exception of exercise of the right of informed consent are introduced.The third part is an analysis of the defects and the improvement of the exercise of the right of informed consent in our country, Through an introduction of the legislative and medical practice in our country, the problems which have existed in the exercise of the right of informed consent are pointed out in our country , so we should learn from the advanced experience of other countries and regions, and the legislative and judicial recommendations are proposed for improving the exercise of the right of informed consent in our country.