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The Research of Legal Issues about Exercising Informed Consent Right

Author: ChenLin
Tutor: LiuYongGuang
School: Xiamen University
Course: Legal
Keywords: Informed Consent Recognition Ability Emergency Diagnosis
CLC: D923
Type: Master's thesis
Year: 2014
Downloads: 10
Quote: 0
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Abstract

Medical practices have widely existed from ancient society. In the practices, relationship between doctors and patients is not only interdependent but also contradictory. The early relationship between doctors and patients is the doctor dominant patriarchal mode. Recently with the development of medical technology and network information explosion, medical knowledge gap between doctors and patients is gradually reduced. Also due to the modern advanced medical equipment, the relationship has physical and chemical phenomena to a certain extent. The patient’s rights consciousness growing, and the informed consent of patients received more attention. However with the imperfections of China’s laws and regulations, there are a lot of problems happened in the process of exercising the right, for example, the contradiction between informed consent of patients and discretion of doctors, Abuse of right with the close relatives of patients. This paper analyzes the section55and56of "Tort Liability Act", and proposes solutions on the basis of the foreign experiences.This paper is divided into four chapters:The first chapter outlines the patient’s right of informed consent. In the chapter we introduce the basic concepts related to patient’s right of informed consent, including its concept, history, content, legally analysis the right of informed consent of patients. Spreading out from its theory foundation and system value, we illustrate the necessity of the right of informed consent which should be paid attention to.The second chapter mainly analyzes the exercise of the right of informed consent. Firstly we introduce the subject of the right exercise, including patients, relatives and stakeholders. Focusing on the relatives to discuss, we put forward several circumstances about relatives on behalf of the exercise of informed consent. Secondly we illustrate the way of exercising the right, which is mainly analyzed by the example of operation consent. At last we summarize the effective elements of informed consent right:patients have the capacity to consent; patients agree on a voluntary basis; Medical personnel have been faithful to the informing obligation. In the third chapter, based on the section55and56of "Tort Liability Act", the doctors’activities are divided into common diagnosis, general special diagnosis and emergency diagnosis methods. The legal problems of the three cases that patients exercise the informed consent right are analyzed, and then we propose the solution suggestions.The fourth chapter is about improvement suggestions, which mainly carry on the analysis from the legislative and institutional system:The differential treatment principle and the discretion of doctor should be established in the legislation. From institution, we could strengthen the judicial review, reform the medical ethics committee and establish the pre-medical indicator system.

The Research of Legal Issues about Exercising Informed Consent Right

Abstract

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