A Study Of The Informed Consent System

Medical malpractice has become a serious social problem in recent years. Although scholars have done some research in this field, many questions are still not been settled in our country. The physician's duty of disclosure is one of them. As we know, every human being of adult years and sound mind has a right to determine what shall be done with his own body. So a physician must provide enough information in order to achieve a truly informed consent. But few people paid attention to this question before.This article is divided into four parts. Part One introduces the informed consent doctrine generally, including its concept and functions. The general rule for informed consent is that a physician must, except in certain situations, obtain the consent of a patient before treatment. However, mere consent to treatment does not suffice: the patient must receive a clear and honest explanation of the proposed treatment so that he or she can give an informed consent. The consent norm had occupied a prominent an honored place in legal thought. The most important function for informed consent doctrine is that it will promote the realization of individual autonomy. Section of this part introduces the evolution of informed consent in America, Germany , Canada Japan and Taiwan .The informed consent doctrine mainly comes from America, so the author plays much emphasis on the evolution in America.Part Two discusses a physician's duty to disclose. There are four sections in this part. Section one is the legal foundation for physician's duty to disclose. Physician and patient can sign a contract to regulate their legal relationship. However, the two parties have different statuses. In the author's opinion, it's better to adjust physician's disclosure duty according to fiduciary duty, for this will help to achieve patients'best interests. Section two discusses the standard of physician's duty to disclose. There are two standards in this doctrine: professional standard and patient standard. The patient standard includes objective standard and subjective standard. In the author's opinion, the objective patient standard is easy to practice. At the same time it can balances the interests between physicians and doctors well. Section three reviews the scope of physician's duty to disclose. After the general introduction, this section lays emphasis on the new development of physician's disclosure scope, such as the personal information and economic interests. The scope of disclosure required by the informed consent doctrine under both case law and statutes will be reviewed. Section four argues the exceptions of physician's duty to disclose. The exceptions include emergency exception, therapeutic privilege exception, unknown risk exception, and so on.Part Three concentrates on the patient's promise. Section one argues the required elements of patient's promise. In order to make a patient's promise effective, the patient must have ability to promise and promise willingly. In addition, achieving enough pertinent information provided by the physician is necessary. Section three introduces the form of patient's promise. The written promise is not necessary in all situation. However, patient and physician had better sign a written contract before an important treatment is put into practice.Part Four analyzes the pertinent legislation and practice. Section one introduces the pertinent legislation and practical situation. Section analyzes the defect of legislation in our country and section three gives some advice on it. As to the scope of physician's duty to disclose, the author analyzes the concerning clauses in the Statute. At the same time, in the author's opinion, the physician's duty to disclose shall also include alternative treatment, physician's qualifications and economical interests.