Research Of Patient’s Informed Consent Right Under Personal-based Thinking In China

The doctor-patient relationship become increasingly tense today, there is moreand more medical disputes. According to statistics, most of the medical disputes areinvolved in informed consent right, this make us have to face up to informed consentright itself and the problems it brings. The reasons why it occurs are because thatinfluence which family culture and medical paternalism bring to the legislation andpractise leads to there are not sufficient understanding, unified understanding andstandard when people face a lot of problems.The author mainly put forward several major undue influence which familyculture and medical paternalism bring to informed consent right in China, the firstthing is the right subject issue of informed consent right which including the rightsubjecy identity and judgment of right subject’s consent capacity, under the influenceof family culture, legal provision about the right subject of informed consent right isin chaos according to chinese existing law, there is not unified regulation about rightsubject actually, and what legal basis it is based on that families and agents exercisethis right is also in arguement. About the identification of right subject’s consentcapacity, it is not regulated in chinese law, it is usually judged based on patients’ capacity for civil conduct in practice, in fact, the patients who do not have disposingcapacity may also have consent capacity. Secondly, it is the content of the informedconsent right. Informed consent right includes the patients’ right to know and consentpowers, the right to know mainly comes from the doctors’inform consent duty, sothere is necessity to discuss the standard of doctors’ inform consent. There are fourexisting viewpoints in academic circles including reasonable doctor standard,reasonable patient standard, specific patient standard, the theory of double standards,and the theory of double standards is the most resonable, it is not only good forpatients, but also will not cause too much burden for doctor, but under the influenceof medical paternalism, what we adopt is reasonable doctor standard in fact. Thecontent of doctors’ inform consent is not explicitly stipulated, and because of that alsoleads to some problems exsiting in relief system.Because there are no clear legal regulations, different people have differentopinions, to avoid causing more medical debate，the author attempts to think aboutthese issues based on personal-based thinking, and proposes the solution for eachparticular case. The legal basis of personal-based thinking is the trials of humanexperimentation war criminals at Nuremburg after world war II, Nuremberg trialsdetermined the principle of informed consent right, it respects human rights, protects legitimate interest of each individual. The value it reflects is respect for humandignity, equality and freedom. Although medical relationship has a strongprofessional, patients are often in a vulnerable position, but we can not treat patient asmechanical object of medical practice, but as an individual with dignity. Finally weattempt to apply personal-based thinking to patients’ informed consent right in China.In the aspect of right subject identity, determine the patient himself to be right subject,family members and parties exercise the rights only because they are given the powerof attorney, they are not right subject, at the same time, respect the patients withoutfull consent capacity, they might have dysfunction in some organs, not reach a certainage, but as long as they can fully understand their illness and medical conditions, weshould admit their consent capacity. In the aspect of right content, ensure the equalityof the doctor-patient relationship, determine the informed content duty, respect thedecision of the patients, guarantees the freedom of patients. Finally, in the aspect ofrelief system, the author put forward some suggestions for identifying components ofthe negligent torts and guarantee provided in practice.The solutions proposed by the author have strong operational practices as well asthe need in the legislation. Informed consent right is a vulnerable right, author hopesthat through there ways we can protect the patients’ informed consent right effectively, but the author dose not blindly stand in the side of patients to fight for the interests ofthe patients ignoring doctors, the doctor-patient relationship become tense is becauseof the conflicts of their interests, the solutions proposed by the author not onlyconsider the patients’ situation, but also do not let the doctor bear more burden, authorbelieve that it will have some impact in easing the doctor-patient relationship.