A Study On The Justification Foundation Of Medical Treatment

With the current enhancing legal rights protection consciousness of patients,medical disputes are increasingly be settled through criminal law approaches beyond the limitation of traditional ones such as negotiation,conciliation and civil action,etc.How to apply criminal law properly in medical issues? How to use criminal control methods to regulate medical treatments and solve medical disputes by involving criminal penalties? At present,the research on the problems mentioned above in China's criminal law field is starting and none of appropriate solutions has been found yet.The author of this thesis holds that the first step of dealing with these problems is to define what medical treatments are justifiable and which are illegal and thus should be prohibited.And even “criminal law” evaluations and criminal penalties should be applied.Therefore,the boundary between legal medical treatments and illegal ones must be specified by explaining the following questions: first,what “medical treatments” will result in criminal penalties? I.e.the definition of medical treatments;second,what are the necessary conditions of “legal” medical treatments? I.e.the justifying foundations of medical treatments.Those are the research topics of this thesis.In this thesis,the author applies documentary analysis and comparative analysis,etc.to study the above questions in five chapters:The first chapter analyzes the different descriptions of medical treatments at home and abroad as well as the characteristics of medical treatments,on the basis of which a definition is reached: medical treatment refers to the damage-inducing medical activities conducted by medically qualified persons or institutions on human bodies with the intention of restoring,altering or optimizing body functions,structures or shapes by applying appropriate medical methods and measures.In Chapter Two,the author studies the situation of medical treatments in criminal law,i.e.,whether they are injurious actions essentially.The “medical treatments are injurious theory” is adopted after expounding and reasoning it and the “medical treatments are non-injurious theory”.In the third chapter,various theories that provide justifying foundations for medical treatments are dissected on the basis that medical treatments are injurious.By comparing and reasoning,the author contends that the patient's commitment is the justifying foundation of medical treatments.Chapter Four introduces the background of patient's commitment becoming the justification medical treatments and specifies that the doctor's explanation obligation must be the prerequisite of patient's commitment.The doctor must inform the patient with the standard of “reasonable patient” and specific additions according to the actual case of definite patient to acquire the patient's effective commitment.Then the necessary conditions of patient's commitment are elaborated from five aspects of the commitment including its subject,content,manner,time and willingness.The following part is about the special circumstances such as enforced medical treatments and emergency medical treatments in which the patient's commitment is unnecessary.In the last chapter,the author explores how to use criminal law to regulate arbitrary medical treatments that are conducted without the patient's commitment.The injury degree of medical treatments should be taken as the “criterion” of judging their illegality.Less injury-causing arbitrary medical treatments executor should.undertake civil illegality responsibilities without the intervention of criminal law;while the great injury-causing dangerous arbitrary medical treatments should be processed with criminal law regulations.