Study On The Function Of Informed Consent Of Patients In Criminal Law

The concept of informed consent of patients starts from the West.With the continuous development it increasingly becomes a hot topic in the study of modern medicine.The provisions about informed consent rights are scattered in some administrative laws and civil laws,and used in some civil cases.However,dispute between doctors and patients is still outstanding,especially in some cases.In addition to the asymmetry of cognitive ability and understanding of medical information,the most fundamental and important problem is still that the operation directly effects on the human body,impacts on the health of the body.Its essence of infringement and damage is difficult for patients to accept.Since the operation is a kind of injurious behavior,it is somewhat illegal.How to make it properly implement and what role informed consent right plays have become to the important direction of the author's thinking.From the perspective of criminal law,this paper plans investigate the effects of informed consent right on surgeries' legality.The article first puts forward three questions,namely,the existence of the informed consent right in the field of criminal law,the similarities and differences between the patient's informed consent right and the victim's commitment and the evaluation of the informed consent right in the medical criminal law.The second part makes it clear that the informed consent right is derived from the right to self-determination,which is the inevitable requirement of the patient's self-determination.From the national legislation,it introduces the status quo of application of the informed consent right in our country,so that the following parts can talk about the right's function in the field of criminal lawThe third part is to distinguish the informed consent right of patients and the victim's promise.These two concepts are similar but different.There is no concept of informed consent right in the context of Chinese criminal law.This part tries to clarify the relationship between the two concepts,so as to analyze the criminal law evaluation of the patient's informed consent right.The fourth part discusses the influence of the informed consent right on criminal law evaluation of surgery behavior.Firstly the nature of surgery behavior should be defined.The paper stands in the position that the surgery behavior is a kind of injury and advocates the right of informed consent of patients with the function of legitimate ground and negates the illegality.Too much emphasis on informed consent of patients not only blows the enthusiasm of the doctor to treat,but also hinders the development of medical field.In addition,risks of treatment cannot be accurately predicted.In the need of public interest,the risk is allowed in a certain extent.Therefore,in the last part,the author discuss exceptional cases that lack of informed consent of patients.