| Doctor’s duty to disclose and patient’s right of consent arising fromdoctor-patient relationship are relevant to the informed consent system. Informedconsent theory consists of patient’s right to be informed and their right of consent. Theformer refers to a patient’s right to know situation of illness, therapeutic measures,risks of operation based on a doctor’s obligation to disclose. The later refers to apatient’s consent to the above-mentioned therapeutic measures, risks of operation. Theinformed consent also contains the patient’s initiative right to know relevant medicalinformation which develops from the patient’s right to passively know medicalinformation. I chose to focus my research on doctor’s obligation to disclose and thepatient’s right of consent, instead of informed consent, because the doctor’s obligationto disclose coincides to the patient’s right to be informed and right of consent candirectly reflect patient’s self-decision right and his initiative status in thedoctor-patient relationship.The legal basis of this thesis is mainly Article55and Article56of the TortLiability Law of PRC and published relevant laws, for example the Law for LicensingMedical Practitioner etc.The first chapter focuses on the analysis of typical cases, existing provisions andproblems.The second chapter focuses on the history of informed consent. The informedconsent system originated from England and obtained its prosperity in US. In ancient Rome, the doctor-patient relationship was affected by medical paternalism. With thedevelopment of human rights campaign, countries started to focus on patients’ right tobe informed and right of consent. Thereafter, judge Cardozo’s decision on Mary E.Schloendorff v. The Society of the New York Hospital, together with Sidaway v.Bethlem, established the informed consent system.The third and forth chapter focus on the status of development of obligation todisclose and informed consent and the experience that we can learn from them. In myopinion, the reasonable patient standard can improve the details of the obligation todisclose in China and state the initiative status of patients in the doctor-patientrelationship. Advance medical instruction system can resolve the consent problem forpatients who temporarily lose consent ability. If the medical decision has to be madeby proxy, the proxy shall make decision in accordance with the principle of bestinterests of the patient. What’s more, in order to supervise the proxy, a neutral thirdparty can be established to judge whether the proxy has abused the right of consent. |
