Judicial Application Of The Medical Informed Consent Rules

The rule of medical informed consent is an important rule to protect the patient’s right to life and health and the right to bodily autonomy.It originated in the common law system,and has been further developed in the civil law system on the basis of reference.China has established the rule of medical informed consent for more than 20 years since 1994.Relevant legislation has been continuously developed and improved in terms of informed scope of medical personnel,informed objects,and methods to obtain patients’ consent for diagnosis and treatment plans.The purpose of legislation has also changed from focusing on protecting patients’ rights to life and health to focusing on protecting patients’ medical and physical autonomy.Although relevant legislation has made great progress in China,it is still not uncommon in judicial practice for medical personnel to fail to fulfill their duty to inform and explain.As a result,this paper selects and studies case documents involving the rule of medical informed consent from July 2010 to December 2021 from wenshu.court.gov.cn,in order to summarize the judicial application of the rule of medical informed consent in China,find and analyze legal issues contained,and then give targeted suggestions for improvement.On the whole,from the perspectives of both patients and medical personnel,medical practical issues reflected in the judgment documents are mainly as follows:(1)The medical personnel choose a plan directly;(2)The medical personnel only inform the diagnosis and treatment plan;(3)The medical personnel inform and explain in a formalized manner;(4)The medical personnel illegally inform;(5)The right of close relatives to act on behalf is not reasonably restricted.From the perspective of the legal application of the judges,the defects of legal application and the internal cultural conflicts in the judgment documents are mainly as follows:(1)The judicial adjudication relies too much on the conclusions of expert conclusions,leading to a certain alienation of judicial power;(2)The judges focus on trial of the medical personnel to fulfil their duty to inform and explain in the diagnosis and treatment process,and neglect the legal obligation to inform in the post-operative recuperation and rehabilitation process;(3)The judging standards are not uniform on the causal relationship between the medical personnel’s failure to fulfill the duty to inform and the patients’ damages.In China,the reasons for the above-mentioned problems in the rule of medical informed consent include inconsistent application standards of judicial adjudication for patients informed consent,excessive reliance of judicial adjudication on expert conclusions,theoretical differences in causality judgments,lack of reasonable restrictions of the judges on the right of close relatives to act on behalf,and conflicts between medical patriarchal cultural tradition and protection of patients’ autonomy.Therefore,it is clear that the objective patient standard is the mainstay,and the specific patient standard is supplemented by the judgment standard,reasonably restricts the close relatives to exercise the patient’s right to informed consent on behalf of the patient,adopts the expression of fault for attribution,distinguishes the appraisal matters to avoid excessive reliance on the appraisal opinion,protects the patient’s medical autonomy and the right to physical self-determination,and then guides the modern transformation of the medical patriarchal culture to the medical equality culture.