| Summary: | 碩士 === 東吳大學 === 法律學系 === 96 === This thesis is aimed at discussing the binding power of the medical patients’ consents (Informed Consent) in terms of Criminal Law. It is worth mentioning that the medical behaviors discussed in this article refer only to those for the purpose of treatment. To understand the position of the informed consent of patients in Criminal Law, first we have to define the relationship between the medical behaviors and the Criminal Law, offences of causing bodily harm per say. Secondly, the legal basis, significance and content of the informed consent need to be illustrated in this article in order to combine it with the legal system of the Criminal Law. Finally this article will ultimately deal with how the medical informed consent is evaluated.
This article holds that patients’ consents are neither “einverstandnis” nor “einwilligung” in Criminal Law. Patients’ consents refer to the consent for possible risks and hence should be tested against tolerable risks. It is part of the objective imputation theory. Therefore, patients’ consents are one of the factors to be considered when evaluating whether the medical behaviors have exceeded tolerable risks. It carries the effect of risk distribution; that is, to distribute unavoidable injuries in a medical process to patients.
The evaluation of a medical behavior starts with the indication and treatment legitimacy. An illegitimate medical behavior is equivalent as an offence of causing bodily harm and no evaluation of the patients’ consents is required. Only when a medical behavior is legitimate is it necessary to discuss the effect of patients’ consents. For a successful medical behavior without damaging physical integrity, lack of the informed consent will not subject such behavior to an offence of causing bodily harm. However, a successful medical behavior with damage to the physical integrity, lack of the informed consent may be rated as an offence of causing bodily harm, depending on whether such lack in actual cases exceeds tolerable risks.
On the other hand, if a medical behavior has resulted in adverse medical results, avoidable injuries will hold the doctor responsible and no review of patients’ consents is required. However, for unavoidable injuries, for which patient’s prior consent is obtained, patients should be responsible for the adverse results. On the contrary, if patient’s prior consent is not obtained, the doctor should be held responsible. As for defective patients’ consents, the evaluation shall vary case by case, depending on whether the defect has resulted in the increase of patient’s risks to a degree intolerable by law.
To sum up, patients’ consents is a mechanism of risk distribution, whose function is to resolve the controversy over whether the doctor or the patient should be responsible for unavoidable medical injuries.
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