Patient's Consent As A Cause Of Justification Of Medical Crime

With the development of medical technology,people's health needs and medical demands tend to be diversified.The medical relationship in medical treatment is no longer just a relationship dominated by doctors,but a complex relationship that involves two-way interactions,which may lead to significant conflicts between doctors and patients and increased medical crime phenomenon.Since medical treatment is performed and its consequences occur directly on patient' body,it will not only cure diseases,but also possibly bring damages and other risks to patient's body.At the same time,respect for the freedom of choice based on patients' individual will has become a social consensus,which has also brought many controversial issues in the medical field.Include such as how to determine the nature of the conflicts between a doctor's duty to treat patients and a patient's own will under criminal law,whether the patient's informed consent can be a justifiable cause that preclude the illegality of medical treatment,where is the boundaries of criminalization or non-criminalization of arbitrary medical treatment and compulsory medical treatment,and so on.All of these need to be studied in depth.This paper intends to conduct research on criminal law theory and criminal cases concerning the consent of patients in medical crimes at home and abroad,to explore the basis and conditions of justification of medical treatment with the consent ofpatients,and to seek solutions to the problems of criminalization and non-criminalization in medical crimes.The following are the views and core issues of this paper:First,the connotation of patent's consent and justification cause of medical treatment.The patient's informed consent means that the doctor fully explains matters relating to the medical treatment before the medical treatment is performed,and the patient makes a faultless expression of intention after he or she fully understands the doctor's explanations.The patient's right to informed consent includes the right to know and the right to consent.The exercise of the right to consent(i.e.,the right to self-determination)is based on the patient's full awareness.The consent which lack of the patient's awareness is also defective and invalid.The exercise of patient's right to know depends on the full performance of the doctor's obligation to explain.The patient's right to self-determination is not only the basic right stipulated in the Constitution,but also the right of personality stipulated in the Civil Law and the personal right stipulated in the Criminal Law.Today's medical treatments include both general medical treatments for therapeutic purposes and cutting-edge medical treatments for non-therapeutic purposes.Cutting-edge medical treatments include plastic surgery,genetic engineering,human assisted reproduction,etc.Therefore,medical treatments can no longer be justified by its purpose of saving lives.Only the medical treatment with "medical adaptability" and "legitimacy of medical technology" and the patient's consent can be considered as legitimate medical treatment.Second,the grounds and conditions for non-criminalization of medical treatment with patient's consent.According to the foreign medical criminal legislation and jurisprudence in countries,the German's judicial practice believe that medical treatment is illegal and meets the constitutive requirements of the crime of injury.Only the patient's consent can prevent the illegality of medical behavior.Japan's judicial practice also believes that medical behavior is illegality,and the patients' consent can prevent the illegality of medical behavior.There are different opinions on medical treatment lacking patient's consent in the judicial practice of Taiwan,some of which are judged by Civil Law and some by Criminal Law.Under the current judicialpractice in China,the judgement is mainly based on the evaluation of the medical treatment according to the theory of the valueless result,i.e.,whether the medical treatment can produce therapeutic effects and restore health.Patient's consent is not a ground for non-criminalization of medical treatment.However,because of the injury nature of medical treatment,it is necessary for Criminal Law to intervene to evaluate medical treatment.Only when the eligible patients consent to block the illegality of medical behavior in accordance with medical rules,can the interests of doctors and patients be better protected.Third,identification of patient's consent and arbitrary medical treatment under criminal law.The criminal laws of civil law countries such as Germany and Japan and other jurisdictions such as Taiwan and Macao clearly stipulate that patient's consent is a ground for non-criminalization of arbitrary medical treatment.The patient's personality liberty and dignity(manifested as the patient's right to self-determination)must be respected,even if there is a medical cause of justification,operations and medical treatments that could significantly affect the patient's body should not be performed arbitrarily.Comparatively speaking,China's criminal law does not clearly stipulate the arbitrary medical treatment.In practice,there are many criminal judgments hold that arbitrary medical treatment that meets the medical rules but exceeds the patient's consent in a non-emergency situation and causes damage constitutes intentional injury and the doctor who performed the arbitrary medical treatment should bear criminal liability.From the point of view of “ought to be”,if the doctor's medical treatment fails to obtain the patient's consent when the patient's consent is obtainable,and causes damages,then the medical treatment shall be deemed to constitute a criminal offence;however,under the circumstance of critical danger that requires immediate medical treatment and the consent of the patient or his close relatives cannot be obtained,arbitrary medical treatment should be non-criminalized.Fourth,identification of patient's consent and compulsory medical treatment under criminal law.From the perspective of foreign judicial practice,compulsory medical treatment is a medical treatment with the purpose of medical protection orsecurity measures,which not only protects patients from harming themselves,but also prevents patients from harming others and endangering public health and safety of the country.The right to self-determination of patients with social risks is limited by strengthening the intervention rights of the doctor.The current law in China only stipulates some right to know of a compulsory medical patient or his guardian,but does not give the patient the right to consent.Therefore,the legitimate compulsory medical treatment itself does not constitute a crime.In practice,however,abuse of rights to perform compulsory medical treatment often occurs,which seriously infringes on personal freedom as well as life and health rights of the patient.If such actions constitute a crime,they should be investigated for criminal responsibility.