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Abstract 摘要

The physician must obtain the patient's consent in order to make medical interference with the patient's body. For instance, the physician may not perform a surgical operation if the patient does not permit the operation. This is generally termed the practice of informed consent. However, there are different patterns of the practice of informed consent between the West and China. In the West the physician directly informs the patent and the patient signs the consent form for an operation. But in China the physician usually informs a family representative and the family representative signs the consent form. This paper argues that the familialistic pattern of informed consent is defensible in the Chinese moral and cultural context.

In the first place, it is necessary to clarify a mistaken view. Some argue that sign for operation is not necessary because it may prevent the physician from doing beneficent acts on the patient. For them, since the physician is doing good to the patient by performing an operation, the patient should have agreed and actually have agreed to such procedures generally. Therefore, it is not necessary for the patient to sign a consent form. There are a number of problems with this view. The primary issue is that it overlooks the sovereignty of the patient over his/her body. It is the right of the patient to control his/her own body, regardless of whether the physician is doing good or bad on him/her. It is true that the physician, as a medical professional, is generally to do good to the patient. But it is still the patient that should be the master of his/her own body and keeps the power of deciding what he/her wants to do with it. Even if the practice of this type of patient rights may not always lead to the best interest to the patient, the cost is worthwhile to pay.

Nevertheless, whether it should be the patient him/herself or a family representative that is to sign for an operation is a different issue. The Western answer is that it certainly should be the patient to sign the form. It is, after all, his/her own body, health, and life that are at stake. But there are different moral and cultural assumptions between the East and the West regarding this issue. Chinese people understand the family as an autonomous unit from the rest of society. They keep a clear distinction between intra- and extra-familial issues. When a family member falls ill, the whole family, rather than the patient alone, faces the physician regarding medical options. So the final authority of decision making is in the hand s of the entire family, rather the single patient. The moral and cultural assumption is that all family members should take care of the sick and make the best medical choice on the behalf of the sick. In this practice it is not that the patient's right to self-determination is deprived of by the family; rather, it is the healthy members of the family exempt the burden of the patient to struggle for such decisions or sign forms. Hence, in the Chinese cultural and moral context, the practice of signing a consent form by a family representative is morally defensible.

However, there should be some limitations on this practice. For instance, in emergency saving life should become the first priority of the physician regardless of whether the physician can get a signature or not. Second, the cultural assumption for the family to sign is to provide treatment to the patient for the patient's interest. If the problem is whether to give up medical treatment, the family should not make such a decision without consulting the patient as long as the patient is competent.

面對由於拒絕簽字而引發的醫療事件,使一些人對特殊醫療實施前的病人簽字制度產生懷疑,認為這是不必要的。但事實上制定述項制度是醫療的必須,它既保護了病人權利不受侵犯,也為醫生從事高風險職業提供了保障,因此可以在倫理上得到辯護。由於中西方不同的文化傳統導致在簽字上有患者本人和家屬之分。家屬簽字有其合理部分,但也存在弊端,應從維護病人最大利益出發,區別對待。

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