On The Institute Of Informed Consent In The Physician-Patient Relationship

As the incompletion of Chinese Medical System and the growing of people's awareness of rights, the medical disputes more and more happened in the society. Therefore how to solve this problem is a social focus. Herein, Informed Consent ("IC"), which reflects the patients'dignity and discretion, is much more concerned. In this article, the author starts from the concept and history of IC, analyzes Italian current legislation and judiciary practice of IC system, and problems existing in Chinese legislation and judiciary practice as well. At last based on the comparative law the author proposes her personal opinions on the development and completion of IC system in Chinese law system, which may contribute to the construction of IC system in China and the solution of medical disputes.This article is divided into five parts. The fifth part is the conclusion. Following is the brief introduction of the content of other parts:Part one is the introduction of basic theory of IC. IC originated from the Nuremburg Code after WWâ…¡. It protected the patients'dignity and discretion. As the nature of the physician-patient relationship changed, IC system has gradually been recognized by many countries'legislation. The main content of this chapter is the substance and value of IC system.Part two mainly discusses IC system in Italian legislation. On one hand, the author analyzes IC's status and value in legislation system from normative significance aspect via Italian constitution, civil law code, Medical Code of Ethics and relevant International treaties. On the other hand, the author comprehensively analyzes the appliance regulation of Italian IC system. The focus is on the subject, formality, the range of inform obligation and exceptions of IC. At last of the chapter, the author analyzes the contractual liability of the physician under the defect of IC system in Italy.Part three is about the analysis of the current legislation of IC system in China. The author analyzes the problems in the existing legal norms of IC in civil law and medical law, respectively. Then the author proposes some preliminary advices for completion of the institution of IC from the aspects of the subjects, applicable rules and exceptions of IC.Part four deals with the remedies for the defects of IC from civil law aspect. Firstly, the author analyzes the nature, characters of the doctors'duty of inform and the problem of liabilities competing under the defect of IC. Then based on the analysis above, illustrates the drawbacks of the application of tort liability. Finally, emphasizes the special criterion of negligence in this area and the possibility and necessity of introduction of contractual liability as a solution for this problem.