Analysis On The Conflicts Between Doctor’s Right Of Decision Making And Patient’s Self-Discretion

Recent years doctor-patient relationship is more difficult. Conflict between doctor and patient also becomes more and more apparent. The conflict mentioned above originates from not only the conflict among interests of both party but also the conflict of their right. The clash between the decision-making right about diagnosis and treatment from doctor and right of self-determination from the patient is the representative. This thesis, by means of the study of the situation and problem discovered from two kinds of right under different models, intends to settle the conflict of the decision-making right about diagnosis and treatment from doctor and right of self-determination from the patient for the proposal of solution in order to prevent and reduce medical disputes.First of all, this thesis introduces two kinds of rights and gives detailed analysis of the conflict between them. The decision-making right about diagnosis and treatment from doctor, which is called doctor’s discretion, means that because of the speciality and uncertainty in the medical field, the doctor enjoys right of determination on things, such as therapeutic method, measures of check, utilization of drug in the course of diagnosis and treatment. Article21in the Doctor Law of People’s Republic of China expressly stipulated the decision-making right about diagnosis and treatment from doctor.Right of self-determination from the patient refers to relative self-determination of the patient to their own health and life. Right of self-determination from the patient roots in essential value implied in right of personality protected by the Constitution. As a result of the speciality of the medical field, the realization of patient’s self-determination is based on that of the right of informed consent. As long as doctor feasible therapeutic schedule and diagnosis measure, patient makes decision on the choice. The right of informed consent of the patient contains the right to know and the right of consent, which is so-called" informed consent law". Many laws have regulations about patient’s right of informed consent, such as the Doctor Law of People’s Republic of China, Regulations on Handling on Medical Accidents, Tort Liability Law.In the process of diagnosis and treatment, the decision-making right about diagnosis and treatment from doctor and right of self-determination from the patient shall be consistent in the purpose, which is beneficial for patient to obtain the best curative effect with a view to the maximum benefit to patient. However, actually in this process doctor and patient often make different even the opposite choice resulting from conflicts, because of various reasons. But relative laws and regulations in our country lack systematicness and operability, which not only does not resolve the conflict well but also strengthens the contradiction between the two kinds right for the protection from the legislator to cause defensive medical action to prevail. The reason for the conflict is polyphyletic. The article mainly analyses legislative reason, model of the relationship between doctor and patient and the personal reason from the doctor and patient.Then, the author, in accordance with the law on the right of informed consent, divided into three model for diagnosis and treatment, at the same time, analyzes every case, put forward relative issues and propose solutions to cope with the conflict mentioned above.The relationship between decision-making right about diagnosis and treatment from doctor and right of self-determination from the patient have opposite side and the uniform side. In fact it is unpractical to wipe out the conflict, but measures can be carried out to mitigate the conflict between these two kinds of right to ease the tense doctor-patient relationship. The paper divides the right of informed consent into three models, which are common model for diagnosis and treatment, generally special model for diagnosis and treatment, urgently special model for diagnosis and treatment, rather the proposal of suggestions generally on the whole. Collecting and sorting typical cases, the author explains in detail these cases, discovers the real problem about the conflict between these two rights and presents advice to handle problem with pertinence.Common model for diagnosis and treatment refers to the act of diagnosis and treatment that is different from special act of diagnosis and treatment, such as surgery, special check, particular treat. Under this model, the decision-making right about diagnosis and treatment from doctor is predominant when the decision-making right about diagnosis and treatment from doctor confronts with right of self-determination from the patient, because relative law only stipulates the patient’s right to know but the right of consent. Therefore, it is easy to find that the doctor abuses the decision-making right about diagnosis and treatment and the right of informed consent from the patient shall be limited weakly. The thesis comes up with the system of return visit to strengthen the service consciousness of the doctor and satisfaction from the patient.Generally special model for diagnosis and treatment refers to special diagnosis and treatment without regard to any urgent internal and external factors. Relative law of our country stipulates that letter of consent from patient shall be obtained when doctor performs special diagnosis and treatment to patients. Under this model, doctor and patient shall conduct sound communication in which decision made by the patient, to the highest degree, can be respected after patient comprehends and weights the advantage and disadvantage. So right of self-determination from the patient plays a dominant role under this model. Performing the duty of care in diagnosis and treatment, the doctor may meet with missed diagnosis and delayed diagnosis that is necessary to affect the exactness and comprehensiveness of notification so that right of self-determination from the patient shall not be realized effectively. The article advises that written notification material and letter of consent shall be perfected to enhance effective communication between doctor and patient, at once promote doctor to improve his duty of care in diagnosis and treatment.Urgently special model for diagnosis and treatment mainly applies to some special medical action. What is disparate to generally special diagnosis and treatment is that urgently special model for diagnosis and treatment has urgent situation. The article adopts generalized understanding to the word "urgent". The change of relative position between the decision-making right about diagnosis and treatment from doctor and right of self-determination from the patient demonstrates complication and diversification, because urgently special model for diagnosis and treatment is pressed for time, the patient’s own disease is hard to forecast and external factors also remain complication and diversification. Conflict of right, under this model, brings out two contradictory problems, which are limitation of the decision-making right about diagnosis and treatment from doctor and abuse of that. The author considers that under urgent situation, doctor shall enjoy the decision-making right about urgent diagnosis and treatment, but the right mentioned above shall be limited by the duty of care to reasonable diagnosis and treatment.