患者自主决定权保护之困境与出路

The Dilemma and Suggestions of Protecting Patients’ Self-determination Right

《医疗纠纷预防和处理条例》虽精细化地规定了医疗纠纷的处理,但仍未解决我国医疗卫生法律体系对患者自主决定权保护太大而化之的问题。对未成年患者,应采用“识别能力说”,以兼顾民法上的监护制度;对成年患者,则应区分特殊群体的成年患者与一般成年患者,前者应构建事先医疗指令制度辅之以成年监护制度,后者则应完善授权委托制度、构建事前风险告知制度与考虑患者最佳利益原则;此外,针对紧急状况下近亲属意见与患者利益相左的情形,应对《侵权责任法》之紧急救治权予以扩大解释。

Regulations on the Prevention and Handling of Medical Disputes have detailed the stipulations on handling medical disputes. However it fails to solve the problem that the legal system of medical and health care in China cares little in the protection of patients' self-determination right. For patients who are juveniles, we should pay attention to the theory of recognition capability and guardianship system in civil law. For adults, we should differ general patients and special patients, and for the former pre-medical directive system supplemented by adult guardianship systemshould be built, and for the latter authorization and entrustmentsystem should be improved and beforehand risk notification systemand the principle of considering patients' best interestsshould be built. Moreover, when the opinion between patient and their relatives are different in urgent circumstances, of Tort Liability Law should be interpreted extensively.