On The Medical Decision-making Right Of The Voluntary Guardian

According to the Article 1219 of Civil Code of the People ’s Republic of China,only the close relatives could make medical decisions for the patient.That is to say,the Article 1219 does not mention the voluntary guardian.And the Article 33 of the legislation only briefly stipulates the voluntary guardianship system from a macro perspective,lacking detailed regulations.Then,there is no legal provision on the voluntary guardian’s right to make medical decisions.Therefore,it is necessary to analyze this right from many aspects.This essay intends to take its normative structure as a logical starting point,then,analyze its implementation path and necessary supervision mechanism in order to answer the problems including what is the voluntary guardian’s right to make medical decisions,how to exercise this right,and how to ensure that this right is reasonably exercised.In terms of normative structure,the source of the guardian’s right to make medical decisions should be clarified at first.On the one hand,the voluntary guardian’s medical decision-making power comes from the content of the voluntary guardianship agreement.For the voluntary guardian,making the medical decision does not only mean a kind of rights,but also means responsibility.On the other hand,the right originates from the patient’s right to make medical decision by him/herself,which means the person under guardianship could reach his/her own will.Secondly,it is wise to grasp the essence of the voluntary guardian’s medical decision-making right.And then,it is important to analyze the right from the perspectives of duties and rights.In other words,although the voluntary guardian has the right to make medical decisions,it does not mean that he/she can make medical decisions on all medical behaviors.An appropriate scope of rights should be set up to provide basic protection for the interests of the patient.Regarding to the implementation of the right,the problem when the voluntary guardian could make medical decisions sparks heated discussion.There exist many theories including the theory of behavioral ability,the theory of recognition ability,the theory of meaning ability and the theory of medical decision-making ability.When analyzing various theories,we should consider the transformation of the current guardianship system and the current mode of autonomy of the will in China.At the same time,attention should be paid to two special cases of patients’ temporary loss of meaning ability and protective medical treatment.It is significant to clarify the priority of the medical decision-making right of the voluntary guardians,otherwise the medical decision-making right of the voluntary guardian would not have practical meaning.On the one hand,it should be clear that the voluntary guardian enjoys the priority to make the medical decision when his/her choice is different from the close relative’s choice.On the other hand,it is necessary to find out who could make the medical decision when there exist several voluntary guardians.If there are only several voluntary guardians in form,it should be clarified that who is the real voluntary guardian.If there are several voluntary guardians in substance,the theory of joint agency should be applied.In the aspect of tort liability,the voluntary guardian mainly bears tort liability to the patient based on internal relations.In the issue of medical decision,there are mainly two kinds of infringement.Firstly,the voluntary guardian violates the principle of respecting the true will of the patient and infringes the patient’s right to make medical decisions.Secondly,the voluntary guardian may violate the principle of protecting the best interests of the patient,which means the infringement of patient’s right to life,right to health and other rights resulting from the voluntary guardian’s misconduct.Meanwhile,different from the statutory guardian,the voluntary guardian take the responsibility for his/her own conduct under the general tort liability rules.Regarding to the supervision,it is wise to learn from the experience of other countries,in order to find the proper path of public supervision and private supervision.Then we could analyze whether it is possible and necessary to regard notarial institutions,medical institutions and so on as the subjects of supervision.As for public supervision,it is necessary to focus on the role of courts when appointing and investigate the voluntary guardians.Also,the importance of Civil Administration Department should not be ignored.Regarding to private supervision,it is wise to focus on notary organs,medical institutions,etc.