Research On The Consent Right Agency Of Near Relatives Of Patients In Emergency Treatment

With the increase in people’s attention to patient’s self-determination rights,the problems caused by the exercise of consent rights under certain circumstances gradually surfaced.When the Xiao Zhijun case and the Yulin incident occurred,the whole society discussed extensively and was more agitated by various conflicts between the patient’s right of self-determination and relatives’ proxy of patient’s right of informed consent.The agency of patient’s consent discussed in this article are derived from the patient’s right of informed consent.Regarding emergency treatment,China has not yet introduced special legislation on it.The provisions on emergency treatment are scattered in the Law on Practicing Physicians,the Basic Standards for Case Writing,the Regulations on the Administration of Medical Institutions,the Tort Liability Law,and Civil Code of the People’s Republic of China.The core essence is that the medical side should provide emergency treatment measures to patients in a critical state.In emergency treatment,the right to consent of the patient can be restricted and represented by others in order to rescue the critically ill or life-threatening patients while the doctor cannot obtain patient opinions.But the standard of obtaining no patient’s opinion is a rather difficult problem.Regarding the embodiment of the right of consent,in practice,only written signatures can express consent,but the General Principles of Civil Law stipulates that in addition to writing,oral or other forms are also legally enforceable.With the promulgation of the Civil Code,there has been a breakthrough in the form of patient consent,but how to operate it is a question worth considering.When the patient fails to pass the appraisal of consent,fails to complete the written signature form of consent in accordance with the requirements of laws and regulations,or if it is not suitable to explain something to the patient,the agent is required to exercise the right of consent.But now,the order of close relative agency implemented in China is a parallel model.Although the Civil Code stipulates a certain order in the guardian,it is not fully applicable to the subject discussed in this article,the parallel model cannot respect the true will of the patient to the greatest extent,nor can it guarantee the best interests of the patient.In this complex situation of interest disputes,the legislation should introduce the theory of interest measurement,but unfortunately,the current law involving the exercising of patient consent rights and of agency does not introduce the theory of interest measurement.As a result,it has led to practical dilemmas such as conflicts in the emergency treatment between patients and close relatives on the exercising of right ofconsent,abuse of agency rights by close relatives,order problems of agency,and conflicts in medical decision-making efficiency.Among various countries,there are a lot of agreement on informed consent,emergency treatment,and agency consent rights.But through comparison,it is also clear that there are many differences between China and western countries as the following: lack of special laws to clearly stipulate the rights of patients;Lack of clear principles for compliance;the medical party has not been given a clearer and more active emergency medical treatment right,and the corresponding penalties for inaction;lack of the right to give medical doctors a clear refusal to reject decisions and instructions that are contrary to conscience;lack of advance medical instruction system;there is no linkage mechanism between medical institutions and judicial organs;the order and scope of agents are different;professional organizations should be responsible for related matters.Based on this,in order to coordinate various laws and regulations on the exercise of patient consent,we must first establish the principles which are the principle of determining the best interests of patients and the principle of exclusion of unreasonable decisions.Under the guidance of these two principles,it is recommended to take five measures to protect the interests of patients when close relatives exercise the right of consent in emergency treatment: a professional organization of identifying the patient’ s ability to consent,clearly stipulating the order of agency,defining the judgment standards of relevant provisions,establishing advance directives system and making legislative norms on the measurement of interests.