Research On Conditions Of The Application Of Informed Consent Adopted To Impediment Of Illegality In Terminal Care

Terminal care is given to patients who are facing death because of disease.In the terminal care period,the purpose of medical treatment is not to cure the disease,but to prolong the patients' life with medical devices.In addition to routine clinical and nursing behaviors,terminal medical behaviors also include a special type of life-extending therapy.In the terminal state,the discontinuation of the patient's life extension treatment is likely to result in the premature death of the patient.Therefore,the behavior of suspending the life-extending treatment is actually similar to the behavior of depriving the patients' life.According to the general theory of criminal law,the consent of the victim only hinders the illegality of the beneficiary's behavior within the legal interests prescribed by the legal order,so there is a great risk of criminal law in the discontinuation of treatment by doctors in the terminal medical treatment.Hence,it is necessary to discuss the possibility of their behavior's impediment of illegality,then expound and prove it by using the theory of criminal law when the "doctors' suspension of treatment" has not been legitimated by legislation but widely exist in practice.This paper attempts to prove that the theory of patients' informed consent is applicable to the impediment of illegality of doctors' behavior of aborting life-extending treatment.In this process,it elaborates on various standards and boundaries of the obstruction of informed consent of patients.First,this paper defines the concept involved in and the basic principles mapped of the criminal law.It focuses on the attribution of the criminal nature of the doctors' medical behavior in the terminal medical treatment.According to the general view of criminal law,the consent of the victim is regarded as an illegal cause that exceeds the law,and the victim's legal interest in life cannot be disposed of without permission,which forms an obstacle on the illegal path to stop the behavior of delaying life treatment.This paper chooses to apply the theory of "as a realization of omission" in German and Japanese criminal jurisprudence,and makes an abstract evaluation of doctors' suspension behavior as the "omission" in criminal law.And then choose the obligation of act as the path to relieve the impediment of illegality.The reason to relieve the obligation is the effectiveness of informed consent of patients,which has three requirements: First,the lead requirement-the performance of doctors' obligation to demonstrate.Second,the basic requirement-the consent of patient.Third,the supplement requirement-the consent of family member.The medical instruction made by the patient when he has conscious ability should have legal effect,and he can withdraw it at any time.When the conscious of patient are not clear,the agency decision of the patient's family should be confirmed,and the standard of patients� substitution should be used as the judgment basis,and the priority of the patient's right of self-determination should be guaranteed.In the terminal state,The doctors' treatment obligation is based on the concurrence of law,medical contract and management.On one hand,incurable patients deny the possibility for the obligated treatment based on the law and medical contract.On the other hand,the effect of patients' informed consent relieve the doctors' obligation of treatment based on the special management in the field by their willing to get rid of medical field management.Within these two aspects,they impede illegality of the life-sustaining treatments.Although the application of patient informed consent shows respect for patient's self-determination,in our legal and medical treatment practice,the theory of patient informed consent still has the risk of being similar to the system of doctor's exemption,which should be restricted by joint-making mechanism and the strict preparation of pre-prescribed medical orders.