论未成年患者知情同意权之民法构建——兼评我国医疗领域相关规定

On the Civil Law Construction of Minor Patients' Right to Informed Consent——Evaluation on the Related Regulations in Medical Field in China

我国《侵权责任法》对未成年人知情同意权问题并未作出规定,卫生部所颁布的《病例书写基本规范》则将民事行为能力作为评断患者同意能力的唯一标准。现行规定之下,未成年患者一律不具有知情同意能力。此种民事行为能力和同意能力不分之规定欠缺合理性,不利于未成年人医疗利益之保护。将未成年人同意能力与民事行为能力在理论中区别开,尽快建立一套符合未成年人心智成熟程度的多元模式,乃是构建知情同意制度之必要一环。

There are no provisions on minors＇ right to informed consent in Chinese Tort Liability Law. In accordiance with the Basic Specification of the Documentation of the Medical Record issued by the Minis-try of Public Health, civil capacity is viewed as the only standard of judging patients＇ consent ability, ac-cording to which none of the minor patients enjoys the ability of informed consent. It is not reasonable that civil capacity and consent ability are not divided. And it is propitious to the protection of minors＇ medical interest. So it is essential in the construction of the informed consent system to divide minors＇ consent ability and civil capacity theoretically and to establish a set of diversification mode that accords with minors＇ mental maturity as soon as possible.