Study On The Patients' Informed Consent Right

The essence of patients' informed consent right lies in patients' self-determination of personality interest,which should be included in the protection of personality right,but it shouldn't be defined as independent self-determination right.Instead,it should be attached to the body right as its positive power.Patients' informed consent right contains two levels of informed consent in its content composition,which is usually manifested in the form of medical information disclosure obligation and patients' written consent.They are structurally indivisible and should not be understood separately.Between them,the informed obligation shall be limited to the interventional inform obligation but not the informed obligation to ensure the curative effect.Besides,its scope should include illness,medical treatment,medical risks,other alternative medical solutions and medical information which is of equal importance,as long as they may materially affect patients on making different medical choice.Agreement requires written form,but the form of disclosure shall not only stay in written form,but perform specific obligation of disclosure.Based on the highly personal attribute of patients' right to informed consent,the subject should be limited to the patients themselves.Only in the case of lacking capacity to consent and protective medical conditions,it can be exercised by the near relatives.The standard of capacity to consent should adopt disposing ability as a benchmark.By appling " General Principles of Civil Law " article 19 & 22,person with limited capacity for civil conduct can decide medical behaviors which match his or her age and intelligence.Concretely speaking,it should be in accordance with the conditions and nature of medical behavior,medical risks and consequences.The application of the recognition ability theory is only limited to the patients with complete capacity for act who have temporary consciousness disorder.At this time,the theory of capacity for act can't properly evaluate the consent ability of patients.As for the sequence of the agent subject of patients' informed consent right,the sequence rule of guardians in " General Principles of Civil Law " should be followed,and medical decisions should be made in accordance with the principle of consensus in the event of internal conflicts of opinions among the close relatives of the same sequence.The act of agent should comply with the principle of patients' benefit maximization,and adopt the "expanded benefit maximization " as standard,which not only considers the maximization of objective medical interests,but also considers patients' personal value preference and independent will.The improper agency behavior of patients' close relatives can be restricted from two aspects.From the perspective of external relations,concerning the effectiveness of the abuse of agency,the law assumes that the agency behavior of the patient's close relatives accords with the best interests of the patient.The medical institution has reasonable trust in this,and generally has no obligation to examine the legitimacy of the agency decision.But if the act of close relatives of patients constitutes an abuse of agency,they shall bear a higher standard of proof to prove that the decision of agency conforms to the patients' independent will and value choice,otherwise the it can constitute the abuse of authority.The medical institution should refuse to accept close relatives' decision,and practice medical behavior according to the patients' medical benefit maximization principle.The difficulty lies in the identification standard of the abuse of agency power.In order to prevent the excessive expansion of medical intervention,the objective judgment standard of medical interests should be adopted,and the degree of significant and obvious damage to patients' medical health interests should be achieved from the perspective of general rational person.From the perspective of internal relations,the tort liability of agents is involved.Close relatives bear the duty of good administrator based on their similar status as guardians and legal agents.When they improperly exercise their agency power,they violate the duty of care,which arises from internal relations and thus causes personal interests of patients to be damaged.So they shall bear tort liability.In addition,the indirect restriction on agency can be realized by revoking the guardian and selecting a new guardian to make a new medical agency decision.Comparing traditional tort of medical negligence,torts that infringe on patients' right of informed consent show different aspects.In the determination of fault,we should insist on the imputation of fault instead of the presumption of fault.And the standard of negligence should adopt “Specific Patient Criteria” but not “Reasonable patient criteria”.In the definition of damage fact,it includes not only the damage to the patient's self-determination freedom,but also the damage to the patient's right to life and health.However,the remedy for patients' self-determination of body should be based on the theory of body right rather than the theory of independent personality right,and the property and non-property damage to patients' body right should be taken as the compensation scope,without the identification of individual patients' self-determination of personality right damage.In terms of the identification of causal relationship,the aforesaid two kinds of damage facts should not be treated differently,and both of them should be subject to the defense of legal substitute behavior.The medical institution can exempt itself from all responsibilities by proving that the patient will agree to the medical behavior even if it fully informs the patient.