The Criminal Evaluation On The Patient’s Agreement In The Medical Practice

This article is based on the patient’s agreement, aiming at seeking the justification basis of the medical behavior. And this article roots in the system design of the informed consent, then analyzes the content and the historical progress, also the feature and the exception of the informed consent. And I observe the criminal evaluation on the arbitrary cure without the patient’s agreement, analyze the related cases, in order to make the doctor carry out the medical behavior within the context of the justification without violating the criminal law. Reviewing the patient’s right of informed consent, the focus point is to analyze the effect of the right of informed consent on the medical behavior in the criminal sight, in order to clarify whether it violates the criminal law. This article can be divided into five parts.This article is divided into four chapters.The first chapter defines the connotation and extension of the medical behavior, and focus on the specific characteristics of it, which reflects the risky medical behavior can bring the patient a huge infringement. The justification of the medical behavior is the core and essence of the analysis of the medical criminal law. The justification relates to the criminal evaluation of the practical medical behavior, while the patient plays a vital role in the justification of it. By analyzing the newest theory and the research at home and abroad, I thoroughly discuss the patient’s agreement, which can be seen as one of the reason of the justification, then reveal the standpoint the core of the patient’s agreement, which can negate the law, and the location of it in the criminal system.The second chapter at first discovers the rise of the right of the self determination, which is the source of the patient’s agreement, then leads to the historical progress of the right of informed consent and the human value of the self determination. Then it reveals the obligation of information disclosure and the effective factors of the patient’s agreement on two levels, which are “the doctor’s inform” and “the patient’s agreement” of the “Prior inform then agree principle”. Especially to protect the patient’s interest, I mainly analyze this topic on several aspects, including the subject of patient’s agreement, the ability to agree, the agent of the agreement, the scope of the agreement, the flaw of the agreement, the exception of the agreement and so on.The third chapter first discusses the definition of the arbitrary medical behavior. Then it analyzes the four theories in the criminal law, and draws my conclusion. Then it investigates the responsibility under the national legislation and judicial modes, and the ways to find out arbitrary medical liabilities.The fourth chapter starts from theory to the practice, from the static analysis of the informed consent to the related motive cases, in order to avoid to protect the patient’s interest only in form. This chapter highly emphasizes on the self determination of the patient, fully respect the will of the patient. During the process of adjusting the doctor’s right of self discretion and the right of informed consent, the form of patient’s agreement will occur normally. That is to say, the patient may give up self cure or the doctor obey the unreasonable requests of the patients and their relatives. This chapter explains this phenomenon in the angle of criminal law.At last,I summarize the article by the final comment.