论安宁疗护的法益基础与完善建议——兼评《深圳经济特区医疗条例》

On the Legal Benefit Basis of Hospice Care and Suggestions for Improvement:Addressing the Shenzhen Special Economic Zone Medical Regulations

安宁疗护的法益基础是公民的健康权。尊重公民意愿施行安宁疗护,符合健康权的积极性、消极性特征与主客体要求。我国第一部涉及安宁疗护的规范性文件《深圳经济特区医疗条例》存在“主体范围模糊、形式要件单一、内容未形成范式、效力等级不明、生效与变更程序缺失、隐私保护难度较大”等法律问题。对此,应基于健康权对现行规范性文件进行提升改进,包括明确安宁疗护主体与范围、强化安宁疗护参与人的权责、统一安宁疗护表现形式、明晰安宁疗护法律效力、细化安宁疗护生效与变更程序、有针对性地保护隐私等,以进一步完善安宁疗护的规范体系。

Hospice care includes"respect for the patient's will"and"social support for the family of the terminally ill."It is vital to ensure that patients are fully informed and make their own decisions,but also to use professional knowledge to help patients and families face the moment of farewell and death.In response,the state has issued a series of policies and pilot projects to promote hospice services,and cities have taken action accordingly.In 2022,Shenzhen revised and adopted the Shenzhen Special Economic Zone Medical Regulations(hereinafter referred to as"the Regulations").In practice,however,controversies regarding hospice care have gradually increased.The Regulations should have responded to the legal benefit basis of hospice care,making it challenging to develop the concept and system of hospice care.Since the pilot was initiated,hospice care is facing increasing legal challenges,which have not yet been adequately resolved even after the introduction of the Regulations,specifically including the ambiguity of the scope of the subject,leading to the division between the goal and real problems of hospice care;the formal element is too simple,which may undermine the significance of hospice care as general notarization;the content has not yet progressed into a complete paradigm,and is highly arbitrary;the level of validity is unclear,and the definition of"living will"is blurred and controversial;it is still uncompleted in the procedures for the will coming into effect and the terms of the will being modified,making it onerous to apply the regulation into different cases;privacy protection is difficult,and doctors and patients disagree on notification and custody,hindering the promotion of hospice care and infringing on people's right to health.According to the positive and negative connotations of the right to health and the requirements of the subject and object,the right to health is the basis of the legal benefits of hospice care.The development of hospice is inseparable from the law,and in order to face the above-mentioned legal challenges,it is necessary to improve it based on the perspective of the right to health:(1)from different actors of hospice,firstly,to clarify the subject and scope of hospice care,i.e.,under the current medical level,only those who can choose hospice due to illness or seniority,and concomitant life risk can choose hospice.Second,to strengthen the rights and responsibilities of hospice participants and to ensure the authenticity of hospice care by clarifying doctors'and witnesses'duty of care.(2)from the procedures of making,coming into effect,and modification of hospice care,it is necessary to unify the publicity forms of the hospice care concept,properly use multimedia,and keep up with the times so that hospice care can be more adaptable to life.The key is to clarify the legal effect of hospice care,which is a prior disposition of the right to health and can be.made on behalf of the patient under special circumstances but must not violate public order and morality.In addition,the procedures for hospice care to take effect and modify should be refined,so that hospice care takes effect when it is made,or take effect once any modification is made,and all previous decisions are changed respectively thereafter.(3)To protect privacy in a targeted manner,the medical profession should fulfill its obligation to inform patients without infringing on their right to privacy and health.Doctors and patients should jointly keep hospice decisions.The development of hospice care requires a combination of measures,with the law as a safeguard,to respond more effectively to the difficulties an aging society brings and protect citizens'pursuit of quality of life.