A Study On The Patients' Right Of Informed Consent

From the Xiao Zhijun's case to today Yulin pregnant woman's case,the paternalism of the doctor has been criticized by the people.Some scholars try to detail provisions of the doctors' informing obligations to regulate the behavior of the doctor and protect the patients' right of informed consent.But it is contrary to the abstractness and generality of the law,more bondage to doctors' medical behavior.In this article,I try to construct the ethical order between doctors and patients by mutual recognition.Morality recognizes individual differences,and even encourages individuals to reach a state of mutual recognition of doctors and patients through rationality.A clear adjustment to medical procedure will only deprive the doctor of his freedom in the name of law,then negative emotions against the rules will transfer from patients to doctors.This article is composed of four parts.The first part is the present situation of patients' right of informed consent.Focusing on the tension between doctors and patients,this part will provide direction for the subsequent construction of ethical order around the patients' right of informed consent.The second part is the construction of ethical order between doctors and patients.It is said that the related medical disputes are attributed to the asymmetry of information between doctors and patients.The information asymmetry problem occurs in many areas,but the information asymmetry between doctors and patients are more likely to lead to mass incidents,causing serious social problems.Because of personal life not restrained and industry leading to chronic diseases incidence,treatment scale is unprecedented and the doctor-patient contradiction is more prominent.But the information asymmetry between doctors and patients has existed for a long time,only can be regarded as one of the reasons of medical disputes,not a fundamental way of constructing harmonious doctor-patient relationship.Even if propagate medical knowledge to all patients to monitor the doctors' duty to inform in the interaction with the doctor,this emphasis on the obligations of the doctor does not make the doctor respect the patient from the heart.The inadequacy of the other aspects of the patient still makes he or she feel not being respected accordingly,then causing a series of medical disputes.This article constructs the ethical order of mutual recognition between doctors and patients by analyzing the fundamental reasons for the frequent occurrence of related medical disputes.The violation of the order will put either side at a great disadvantage,driving patients and doctors to respect each other side,thus forming the dynamic mechanism of the equal interaction between the doctors and patients.The third part is several problems to be solved on patients' right of informed consent in the reality.It mainly includes the criteria for judging patients' consent,the proper location of family's consent,the effect of the written consent,and the restriction of patients' right of informed consent.The patients' ability to consent should be referred to by the law,and the behavior motivation of the patient is the final evaluation criterion.Family's consent is an extension of the patients' consent.The errors using written consent in the practice put the family consent on the position that it should not be on.The reasonableness of the family's consent makes it play a positive auxiliary role in the exercise of the patients' right of informed consent,while the auxiliary function is not a patriarchal authority.In a conflict with the patients' decision,family's consent can not replace the absolute position of the patients' decision.Through the analysis of the correct orientation of family's consent and the limitations of written consent form,this article corrects the erroneous understanding of patients' right of informed consent in practice,and practically protects the right of patients' informed consent.In addition,this article also analyzes the two cases of reasonable restriction of the patients' consent.The restriction of patients' right of informed consent for public interest should be clearly defined by the law.And the restriction of patients' right of informed consent for patients' health should be placed under the system which is designed to disperse the risk in the exercise of doctors' right to emergency disposal.The fourth part is the improvement of damage sharing mechanism helping to protect patients' right of informed consent.The tort liability law distribute medical damage between the patient and the hospital according to the principle of fault liability.Because of the restrictions on litigation rules and proceedings,compensation can not effectively fill the medical damage to patients.The liability insurance is the socialization of damage compensation,not only can make the patients get remedy timely and effectively,but also can help hospital spread medical risk,relieve responsibility of compensation for damage,reduce dependency on written consent form,and even exercise the right to emergency dis-posal decisively faced with choices between patients' life and health and patients' informed consent.