Study Of The Informed Consent Of Patients

With the rapid development of medical science and technology and the rising awareness of civil rights, doctor-patient relationship is showing a trend of growing tensions. The medical tangle cases increased year by year, one of the important reasons is that doctors did not pay attention to communicate with patients and invaded the patient's informed consent right. The right of informed consent is a basic legal right of patients and reflects the patient's right to decide their own health care. Therefore, the emphasis on respect for patient's right of informed consent is conducive to building a harmonious doctor-patient relationship. Western developed countries have established a relatively perfect system of informed consent. Some related laws of China have stipulated the right of informed consent, but there are still many drawbacks. This article attempts to carry on preliminary discussion to the legal problems involved in the patient's right of informed consent,hoping that it may be helpful to establish the system of informed consent in China. In addition to the introduction and conclusion, the paper is divided into four parts:Chapter one deals with the basic theory of the patient's right of informed consent. The right of informed consent means that patients have the right to make their own medical consent under the necessary and sufficient information which is provided by doctors. The right of informed consent come into being with the background of the transition of doctor-patient relationship and the impact of the human rights movement, it has developed both in the Anglo—American countries and the Civil Law countries. China's law also explicitly admit the patient's right of informed consent, but the principles and provisions are too general and the remedy measures are imperfect.Chapter two deals with one part of the system structure: informed consent of the notification obligation. As the informing obligation of the medical doctors is an important basis to build the informed consent system, so the author want to introduce the informing obligation of the medical doctors separately in this part. This chapter has five sections. Section one deals with the type of the doctors'informing obligation. Informing obligation of the doctors have three types: the obligation to advise referral, the obligation to obtain a valid consent from the patients and the obligation to wellness guide. The author holds that the obligation to obtain a valid consent from the patients is the object of study of this article. Section two deals with the legal nature of the doctors'informing obligation. In my opinion, it is a legal contractual obligation and a conventional obligation of contract duty. Section three deals with the standard of the doctors'informing obligation. The author mainly introduces four standards and point out that our country should take the double-standard. Section four deals with the content of the doctors'informing obligation. After introducing the general content of inform, I also introduces in detail the content of inform about surgery, anesthesia, blood transfusion, injection, drug use and experimental clinical medical. Section five deals with the method of the doctors'informing obligation. In order to make patients to really understand informing content and make a effective consent, doctors should take a appropriate informing mode and pay attention to the language and skills.Chapter three deals with the other part of the system structure: the legal components of the patient's consent right. This chapter has four sections. Section one deals with the exercise of informed consent right of the subject. When the patient has capacity of consent, the patient should exercise the right of informed consent. When the patient has not capacity of consent, the right should be exercised by others. Section two deals with expression of will of consent. The expression is true or not will directly affect the effectiveness of patient consent. Section three deals with the content of the consent right. The content of consent is whether the patient receive medical treatment and the extent of acceptance. The author holds that implementing medical behavior must under the scope of the consent of the patient. It is not free to expand the scope of the consent unless there is an emergency. Section four deals with the manifestation of informed consent right. There are express (written, oral)and implicit in two ways. In addition to the law clearly stipulates the right of informed consent forms that should be taken, the use of other methods generally have the same legal effect.Chapter four deals with relief of infringe the patient's informed consent right. It causes coincide liability of torts and breach of contract when doctors infringe the patient's informed consent right and cause damage. Which one is more suitable as the reason for prosecution, the author holds that the right to choose should be given patients, because coincide liability of torts and breach of contract have their own advantages. Finally, the article separately from coincide liability of torts and breach of contract, analyze that doctors should undertake the corresponding legal responsibility when infringe the patient's informed consent right.