| With the arrival of the deep aging of the population,people began to realize the importance of pre-arranging medical affairs after disability through the voluntary guardianship system,and China introduced the voluntary guardianship system in line with the trend of the times.However,in medical practice,regardless of whether the patient has a voluntary guardian or not,the patient’s right to medical informed consent is mostly exercised by the patient’s close relatives.In judicial practice,there has also been a conflict between the rights of voluntary guardians and close relatives in the exercise of medical informed consent.The reason is that the system of medical informed consent in China’s voluntary guardianship is lack of operability and lack of institutional cohesion.Firstly,this paper puts forward the current problem of the right of informed consent of traditional Chinese medicine in the practice of voluntary guardianship with a case-the conflict of rights between the voluntary guardians and their close relatives when exercising the right of informed consent of medical treatment on their behalf.From the perspective of safeguarding the legitimate rights and interests of the ward,the analysis of this case can draw the conclusion that the voluntary guardians’ exercise of the right of informed consent of medical treatment on their behalf is justified.Then it analyzes the differences between the three concepts of voluntary guardianship and voluntary agency,the right of self-decision and the right of medical informed consent,civil capacity and medical decision-making capacity,and clarifies the research focus of this paper.The medical informed consent right in voluntary guardianship is different from that of other subjects in exercising medical informed consent right.Secondly,this paper analyzes the system of the right to informed consent of Chinese medical treatment in the context of legislation and medical practice,and concludes that the current system has the limitations of lack of operability and poor system connection.Then this paper makes an extraterritorial investigation of the right to medical informed consent in voluntary guardianship,and combs the legislative and judicial practice of the system in Anglo-American law system and civil law system.By comparing and analyzing the current situation of the system in China,the author summarizes the enlightenment that has reference value for the improvement of the system in China,mainly including: the relevant rules need to be detailed,the concept of respecting the true will of the ward needs to be sorted out,the whole process,and the two-track supervision system needs to be established.Finally,this paper summarizes the institutional limitations of the right to informed consent in the voluntary custody of traditional Chinese medicine,and puts forward a sound idea of building specific institutional rules and strengthening institutional cohesion by drawing on the practical experience of foreign countries. |
