论他人代为医疗决定的法律构造——以切实保障成年患者自决权为宗旨

On the Legal Structure of Others' Medical Decisions——On Protecting the Adult Patients Right to Self-determination

我国《侵权责任法》第55条、第56条规定,患者在不宜或无法做出医疗决定时由其近亲属代为行使医疗决定,但是该规则并未明确其近亲属代为医疗决定所应遵循的法定条件和标准,以致实践中其近亲属所做决定即便明显违背患者意愿或利益,医师也不得不按照其决定实施医疗行为。从国外相关立法及理论发展来看,保护患者自决权、防止他人代为医疗决定的任意性是其基本立场;确立医师的相关特权能在一定程度上发挥抗衡他人越权决定的作用。我国在将来制定侵权责任编中,需以保护患者自决权为出发点,完善他人代为医疗决定的具体规则,切实保护患者权益。

Articles 55 and 56 of China’s Tort Liability Law stipulate that patients should exercise medical decisions on their behalf when they are unfit or unable to make medical decisions. However, those rules does not clarify the legal conditions and standards that its close relatives should follow for medical decisions. As a result, even if the decisions made by their close relatives in practice are clearly contrary to the wishes or interests of the patients, the doctors have to implement medical actions in accordance with their decisions. From the perspective of relevant foreign legislation and theoretical development, the arbitrariness of protecting patients’ right to self-determination and preventing others from making medical decisions is its basic position. Establishing a doctor’s privilege can play a role in countering the decision of others to override the authority to a certain extent. In the formulation of tort liability in the future, China needs to protect the patient’s right to self-determination as the starting point, improve the specific rules for medical decisions made by others, and effectively protect the rights and interests of patients.