A Study on the Arbitrary Medical Practice-An Exception to the Doctrine of Informed Consent

[[abstract]]本論文主要為探討醫療行為告知後同意的例外-專斷醫療適法性的研究。在醫療臨床實務上，許多的醫療糾紛均起因於醫師未履行告知義務或告知不完全，致使醫師和病人兩方對於醫療行為觀念有所落差。不可否認的過去傳統觀念中父權主義的醫療模式已被揚棄，病人才是醫療行為的主體。為落實此觀念即賦予病患對於醫療行為具有自主決定的權利，醫師具有真實說明的義務。要求醫師必需在病患作決定前提供充足醫療資訊，以維護病人自主決定權。其次討論醫師所應履行告知義務的範圍，我國醫療法及醫師法告知義務依據及規定，及告知義務所具有的法律效力。醫療行為在本質上會牽涉到「損害」的概念，因此病患同意權之行使，病人行使同意權，除在侵權行為法上可作為阻卻違法事由外，另在醫療契約上具有確立醫療契約債之標的之雙重效力。惟在醫療實務上，究竟應具備何種要件始得謂醫師已取得病患之告知後同意？ 本文欲強調者專斷醫療行為不一定具有違法性，須看是否具有阻卻違法事由如不具備有阻卻違法事由將被認為專斷醫療侵權行為，在侵權法上須負侵權行為的責任及契約法上債務不履行的責任。醫師違反告知後同意實施專斷醫療侵權行為時雖被課以民事上損害賠償責任時，是否該項醫療行為等同於成立刑事過失責任？本文採否定見解，民法與刑法，其所設計本質行使範圍及證據歸責所要求程度均有所不同。概括而言，刑法為採罪刑法定主義的形式不法，而民法上所採取為損害補償主義的實質上不法。因而對於醫師專斷醫療行為民事損害賠償責任上請求權，不應直接適用於刑事責任，應視醫師未說明事項與病人受傷害之相關性而定。[[abstract]]This study the main issue is to explore the exception of medical treatment to informed consent – the fitness to law of arbitrary medical tort In the medical clinical practice many disputes are caused by physicians do not provide or incompletely give the benefits and risks information to patients resulting in the different concepts between physicians and patients for the medical treatment Therefore it is very important that the physician obtains the patient’s informed consent before the medical treatment The traditional concept of patriarchy in the medical model has been abandoned but the patient should be the main part of the medical treatment First for the implementation of patients’ right to make the decision for medical treatment so the physicians should have the obligation to explain and provide sufficient medical knowledge to protect the patients right of autonomy Second the discussions are the scope of physicians’ obligation to fulfill our country medical law and in accordance with the provisions of this obligation in our country and the legal effect of this obligation This article claims that the informed obligation should be based on the dual-based that is a compromise of the doctor’s position and the patient’s position Because the medical treatment usually relate to "damage" if the physicians obtaining the patient permit before the procedure can ensure the effect of medical contract and be the barring offense in tort law And therefore in the medical practice what elements should be obtained from patients that doctors make the informed consent? How it can protect the patient’s right for the civil and criminal responsibility if apply arbitrary? This article emphasized that the medical arbitrary illegality does not really illegality it depend on those who want to conduct the medical arbitrary illegality does not necessarily have to be responsible to the law negates the subject If we do not have a reason negates the law would be considered arbitrary medical tort in tort liability tort and contract law on the responsibility of the debt does not carry out this responsibility As the law negates the reason there is an emergency shelter the victim consented in accordance with the law the right to exercise and an absence due to management As physicians in violation of informed consent when the implementation of arbitrary Although medical tort has been subject to civil liability does the medical equivalent to the establishment of criminal negligence? In this paper the negative opinion mining civil and criminal law the design of the nature of the exercise of its scope and extent of evidence required are different Generally speaking the Penal Code is scheduled to take the form of crime and criminals and adopted by civil law for damages and compensation for the illegal substance its scope is broader than the criminal law Arbitrary and therefore medical treatment for the physician to civil liability for damages on the request should not be directly applicable to criminal responsibility should be a matter of doctors and patients did not hurt may be of relevanc