On The Adaptation Of Presumed Consent In Arbitrary Medical Practice

Invasive medical acts may become harmful in criminal law,and the fact that a physician obtains valid consent from a patient before performing an invasive medical act is a fundamental basis for the justification of medical acts.The doctrine of presumed consent is one of the bases for excluding physicians from criminal liability in exclusive medical acts.In Germany and Japan,although the systemic position of presumed consent in criminal law and the rules of its application are still controversial,it has been widely recognized in medical criminal law jurisprudence.A comprehensive analysis of the application of presumed consent in German criminal law jurisprudence and the main doctrinal views shows that it is an independent deterrent to delinquency.The determination of whether presumed consent is established should be based on the "patient’s base theory" rather than from the perspective of "presumed rational society in general," and the pre-existing consequences of arbitrary medical acts should not be taken into account.The paper is developed in four main sections:In the first part,after defining the medical act as a generic term for the medical activity performed by a physician,it is explained that regardless of the ultimate efficacy of the invasive medical act,it causes damage to the patient’s bodily integrity or degree of health,and therefore it is a harmful act under the criminal law perspective,and the physician is at risk of criminal liability."The principle of informed consent is a recognized medical ethical principle,and in order to justify medical practices and thus exclude the criminal punishability of physicians,physicians must provide adequate information about the medical practice they are performing and obtain valid consent from patients on that basis.However,the lack of valid patient consent for arbitrary medical practices is justified by the doctrine of constructive and presumed consent.In the second part,we explain that the doctrine of "presumed consent," which originated in German civil law jurisprudence,has gradually gained recognition in German criminal law over the past century or so,and has been directly invoked in German criminal jurisprudence to exclude doctors’ criminal liability in cases of arbitrary medical acts.However,when applying the presumption of consent,there is no consensus among German practitioners and academics as to the criminal law basis of the presumption of consent to exclude doctors’ criminal liability,nor is there a consensus as to the criminal law position of the presumption of consent.In the third part,regarding the systemic position of presumed consent,there is a debate between the "exclusion of constituent elements" and the "deterrence of illegality".In fact,presumed consent is one of the branches of the consent theory,and it belongs to the illegality blocking factors in the illegality class,along with "presumed consent" and "actual consent",which block the illegality of medical acts in the objective illegality level,thus excluding the criminal responsibility of doctors.Therefore,it is not possible to exclude the objective elements of the crime of injury by medical act.In the fourth part,there is a difference between the "patient benchmark theory" and the "rational generalist theory" regarding the determination of presumed consent.It is against the patient’s right to self-determination and cannot ensure the realization of justice in each case,so the "patient’s benchmark" should be adopted.In the current situation of China’s judicial practice,medical disputes are generally characterized as civil tort disputes or administrative cases,and the criminal law only sets the crimes of medical malpractice and illegal sterilization in the sub-paragraphs of the criminal law,which are exclusively related to medical behaviors,if a medical behavior does not meet the elements of the crime of medical malpractice or other crimes in the sub-paragraphs of the criminal law,it is not suitable to be included in the civil or administrative field.If a medical act does not meet the elements of medical malpractice or other crimes in the Criminal Law,nor is it appropriate to be included in the civil or administrative field,it should be considered as a crime of causing serious injury by negligence or intentional injury,so as to fully protect the legitimate rights and interests of patients.At this point,the presumption of consent has its scope of application.