Research On The Legal Guarantee Mechanism Of The Informed Consent Of The Patient In The Doctor-patient Relationship

Medical informed consent systems can ensure that patients in medical behaviors will gain the doctors' respect,and have more freedom to choose and determine their treatments.At present,the right to informed consent in our country's legal provisions is comparatively weak,but the specialty and technicality of doctors' profession are relatively strong.It's greatly difficult for vulnerable patients who rely on the laws of principle to fight against doctors' infringement and protect their own rights and interests.In addition,although the study of the right to medical informed consent can be found everywhere,but it seems that most scholars all hold similar views on ensuring patients' right to informed consent and emphasizing doctors' informing obligation spontaneously.This makes the academic research always stay at a level,so that the horizontal and vertical are not even more greatly broadening.Based on this,I try to blaze a new trail and cast off the yoke of the concept that right and obligation are unified.First of all,I'll provide a powerful legal basis for medical informed consent from the perspective of the philosophy of law;Secondly I'll make typed analyses and theoretic constructions of medical informed consent.Then from the perspective of the particularity of medical behaviors,I'll try to make analyses of legal protections and legal restrictions in depth of the right to informed consent,and put forward the view to perfect the existing laws and construct specialized legal safeguard mechanisms of medical informed consent.As the author,I do hope this article could inject a bit of fresh ingredients into the theoretical research of medical informed consent,and provide a new way of thinking.This paper is divided into five parts: the first part is the definition and the institutionalized process of the right to medical informed consent.Initially in doctor-patient relationships,patients are in a passive position.Doctors' profession control patients' life and health utterly,and this relationship to obey actually is the inequality in their positions and the information asymmetry between them.The opacity of treatments is bound to bring about the increased conflicts between doctors and patients.With attention to the guarantee of human rights and the development of medical technology,informed consent systems have been built up gradually to ensure patients' free choices of treatments and independent decisions of their life and health.The second part is the legal bases of the right to medical informed consent.I'llset forth the source of rights for medical informed consent by combining the theoretical study of scholars and my own understanding.According to Kant's ideas of philosophy of law that respecting a person unconditionally is the purpose,I'll emphasize the essential attribute of the right to medical informed consent which is attributed to a person's free choice and dignity to provide a legal basis for constructing legal safeguard mechanisms of the right to medical informed consent in our country.The third part is the institutional and practical dilemmas of the right to medical informed consent.On the institutional level,compared to foreign laws of the right to medical informed consent,I'll discuss that our country laws end up with declared significance and protection of patients' rights and interests is extremely lack of specific provisions.The universalism of legislation even leads to conflicts and contradictions between provisions,so that it's harder for patients to safeguard their rights and interests with application of relevant laws.On the practical level,combined with specific cases,I'll analyze the operating dilemmas of informed consent institution.On the one hand,owing to lack of punishment systems,doctors violate the duty of disclosure and implement infringement act.On the other hand,patients relieve rights without rules to follow or abandon rights relief negatively.The fourth part is typed analyses of medical behaviors and theoretic constructions of right to medical informed consent.I'll contrast and analyze the particularity of urgent medical behaviors,protective medical behaviors and excessive medical behaviors,and discuss liabilities and justifications of right to informed consent in these three kinds of medical behaviors in practice.The right to informed consent should not only gets perfect legal protection but also accepts strict legal restrictions.Research without distinction on medical behaviors inevitably leads to the singleness of medical informed consent system's construction and the difficulty to deal with complicated situations in medical practice.The fifth part is constructing legal safeguard mechanisms of medical informed consent.According to the differences in three medical behaviors above,I'll point out that perfect the existing laws comprehensively and explicate the certainty and the specification of relevant provisions.Then,compared to the Consumer Protection Law,I'll give an idea to construct the Patient Protection Law specifically and emphasize the particularity of the protection of patients' rights and interests in different medical behaviors,so that it will be more detailed to protect patients' right to know,right toconsent and informed consent procedure by laws.