论我国末期患者放弃治疗之法律规制

On the Legal Regulation of Abandoning Treatment for Terminally Ill Patients in China

放弃治疗法律规制之缺失,导致诸多现实问题。如一些应该被救治的非末期患者被他人违法放弃治疗而损害生命健康权,而一些治愈无望、近期内不可逆地必然走向生命终点的末期患者想要自然死亡却频频受阻,不仅其医疗自决权得不到保障,医务人员及患者近亲属甚至还有可能受到犯罪的指控,故我国实有必要对放弃治疗予以法律规制。具体而言,我国立法宜规定:末期患者放弃治疗的适用主体只能是“不可治愈、近期内即6个月内生命将不可逆地进行至死亡的末期患者”;有医疗同意能力的末期患者之放弃治疗应由其本人自主决定,立法上赋予预先医疗指示法律效力;因伤病陷入昏迷或严重意识不清状态、精神障碍、智力障碍而不具备医疗同意能力的末期患者之放弃治疗由其近亲属代为决定,但不得与患者本人意识清醒时表达的相关医疗意愿相违背;因未成年而不具备医疗同意能力的末期患者放弃治疗根据年龄段由法定代理人代为行使或者经法定代理人同意;在法定情形下,末期患者放弃治疗所放弃的医疗措施范围只能是无益、有创的医疗维持生命措施。此外,我国立法还应制定严格的末期患者放弃治疗的适用程序,以防该机制被滥用。

Due to the lack of legal regulations on abandoning treatment, many practical problems are emerging. For example, some non-terminally ill patients who should be treated are illegally abandoned by others, thus their right to life and health are undermined, while some terminally ill patients with no hope of cure and an irreversible near-term end of life are repeatedly prevented from dying naturally;not only is their right to medical self-determination not guaranteed, but medical personnel and close relations of patients may even be accused of crimes. Therefore, it is necessary for our country to regulate abandonment of treatment. To be specific, our legislation should stipulate that the subject of application for terminally ill patients can only be “incurable terminally ill patients who will die within 6 months”;it is necessary for the legislation to give legal effect to the advance medical directive. For terminally ill patients who are incapable of giving medical consent due to unconsciousness, mental disorders, or intellectual disabilities, their decision to give up treatment can be made by their close relatives on behalf, but cannot be against the medical wishes expressed by the patient who then is conscious;for minor terminal patients who are not capable of giving medical consent, their decision to give up treatment can be divided into two situations according to age: the decision made by the legal representative or one agreed by the legal representative;under legal circumstances, the scope of medical measures abandoned by terminally ill patients can only be non-beneficial and traumatic medical life-sustaining measures. In addition, China’s legislation should also establish strict procedures for terminally ill patients to abandon treatment in order to prevent the abuse of this mechanism.