摘要
《民法典》修改了《侵权责任法》第五十五条的既有规则,将患者近亲属行使诊疗活动决定权的前提从“不宜向患者说明”改为“不能或者不宜向患者说明”。针对这一立法变化,近亲属同意规则需要进行解释论重构。“不能向患者说明”应解释为患者缺乏对相关诊疗行为的同意能力;“不宜向患者说明”应解释为对患者有采取保护性医疗措施的必要。在这两种情形下,近亲属代为决定的制度设计,目的在于最大限度地维护患者合法权益,而非实现近亲属自身利益或家庭共同体利益。《民法典》“婚姻家庭编”对近亲属的规范界定应同样适用于患者近亲属领域。在存在多个近亲属的场合,不宜采纳刚性的顺位规则,但依然需要参照监护顺位或继承人顺位确定一定的程序性规则。对近亲属做出的明显损害患者利益的医疗决定,可通过对既有规则的解释加以限制和否定。
On the issue of informed consent for medical measures,Paragraph 1 of Article 55 of Tort Law of the PRC stipulates that if it is not appropriate to explain to the patient,the medical staff shall explain to the patient's close relatives and obtain their written consent.The″close relatives consent″rule has caused a lot of controversies in practice,mainly involving three aspects:first,how to understand″not appropriate to explain to the patient″;second,how to define the″close relatives″stipulated in this article;third,how to deal with situations where medical decisions made by close relatives(may)harm the interests of patients.Article 1219 of the newly adopted Civil Code of the PRC modifies the prerequisite for patients close relatives to exercise the right to make decisions on diagnosis and treatment activities.This legislative change and the promulgation of Civil Code itself will undoubtedly affect the interpretation and application of the relative issues.Therefore,it is necessary to reconstruct the″close relatives consent″rule through interpretation from the perspective of the systematic integration of civil law norms.Regarding the normative prerequisites for consent by close relatives,Article 1219 of Civil Code changes″not appropriate to explain to the patient″to″impossible or inappropriate to explain to the patient″.The expression″inappropriate to explain to the patient″here should be interpreted as the necessity of taking protective medical measures for the patient,while″impossible to explain to the patient″should be interpreted as the patient's lack of consent capacity for relevant medical measures.In these two situations,the″close relatives consent″rule is designed to protect the patient's rights and interests to the maximum extent,rather than to achieve the interests of close relatives or the family community.If the patient lacks capacity for civil conduct at the same time,the guardian priority principle is followed;where there is an intended agent,based on the respect for the patient's self-determination,the intended agent is also preferred in principle,but whether the authority agency is effective or not must be judged carefully.Regarding the definition of the patient's close relatives,the normative definition of close relatives in″Marriage and Family″Book of Civil Code should also apply to the field of the patient's close relatives.Where there are multiple close relatives,rigid order rules should not be adopted,but certain procedural rules need to be determined by reference to guardianship or heir order.When deciding which close relatives to ask for consent,the specific scenarios of medical activities should also be considered,and the disadvantages caused by the above procedural rules should be resolved with the medical institution's contractual disclosure obligations.Regarding the restrictions on consent by close relatives,when the patient lacks capacity for civil conduct,and the patient's guardian exists among his close relatives,the medical institution can apply to the court to revoke the guardian's duty to prevent his improper decision from harming the patient's fundamental interests.In cases where close relatives do not belong to the guardian,and the decision made by them clearly harms the patient's interests,the medial institution may reasonably reject close relatives improper decision based on its contractual obligations to protect the patient.In general,the Civil Code modifies″not appropriate to explain to the patient″to″impossible or inappropriate to explain to the patient″.Although only a word difference,it has a significant impact on the systematic interpretation of the″close relatives consent″rule.However,no matter how the legislative level changes,the focus of interpretation and application is always on the exploration of legal norms and the response to practical problems.Through the empirical study of the micro-system,we can draw further conclusions:hermeneutics in the era of Civil Code is still a problem-oriented discussion.It will not cut off reality,but just a continuation of reality.
作者
陆青
章晓英
Lu Qing;Zhang Xiaoying(Guanghua Law School,Zhejiang University,Hangzhou 310008,China)
出处
《浙江大学学报（人文社会科学版）》
CSSCI
北大核心
2020年第6期110-127,共18页
Journal of Zhejiang University:Humanities and Social Sciences
基金
浙江省社科规划一般项目“数字身份的法律规范体系研究”(21NDJC031YB)。
关键词
《民法典》
医疗纠纷
患者知情同意权
近亲属同意
Civil Code
medical dispute
informed consent
informed consent by close relatives
