The patient who refuses medical treatment: a dilemma for hospitals and physicians

This article reviews recent case and statutory law concerning patients who refuse medical treatment. Among the special cases considered are: the competent adult patient who refuses treatment on religious or privacy grounds; the incompetent patient whose own wishes were never expressed, but whose family refuses treatment; the incompetent patient who expressed the wish not to be treated before becoming incompetent; and parents who refuse treatment on behalf of their child. It is pointed out that recent court decisions have blurred the distinctions between "extraordinary" care and "ordinary" care and between withholding and withdrawing life-sustaining treatment. Reference is made to the recent trend toward allowing the family of an incompetent patient to assert the patient's rights without court intervention either in the form of direct court order or through guardianship proceedings. Finally, the implications of these legal developments for health care institutions are discussed. A protocol pertaining to incompetent patients is proposed. Health care institutions are encouraged to develop formal policies for dealing with patients who refuse treatment, and to work with their professional associations in lobbying for legislation which will clarify the law in this area.     

关于医疗纠纷概念与处理的两点法律思考

改革开放以来,我国医疗纠纷呈逐年上升的趋势。一般认为,医疗纠纷是指医患双方对诊疗护理后果及其原因的认定存在分歧,当事人提出追究责任或赔偿损失,须经行政的或法律的调解或裁决才可了结的医患纠葛。长期以来,国务院、卫生部就此问题颁布的行政法规、规章广受指摘,正面临大的修改和变动;从实践来看,最高人民法院相继做出的几个司法解释也未达到其澄清法律关系与司法程序的初衷,相反造成了一些不必要的误解和歧义,有待进一步明确。此外,学术界还有专家呼吁从立法的层次上解决问题,提请人大常委会就医患关系进行特别立法加以规范。本文仅从医疗纠纷中选取若干问题,尝试从法律视角予以讨论,求教于方家。     

关于医疗纠纷概念与处理的两点法律思考

改革开放以来 ,我国医疗纠纷呈逐年上升的趋势。一般认为 ,医疗纠纷是指医患双方对诊疗护理后果及其原因的认定存在分歧 ,当事人提出追究责任或赔偿损失 ,须经行政的或法律的调解或裁决才可了结的医患纠葛。① 长期以来 ,国务院、卫生部就此问题颁布的行政法规、规章广受指摘 ,正面临大的修改和变动 ;从实践来看 ,最高人民法院相继做出的几个司法解释也未达到其澄清法律关系与司法程序的初衷 ,相反造成了一些不必要的误解和歧义 ,有待进一步明确。② 此外 ,学术界还有专家呼吁从立法的层次上解决问题 ,提请人大常委会就医患关系进行特别立法…     

Setting the legal standard of care for treatment and evidence-based medicine: a case study of antenatal corticosteroids

This article argues that liability for negligent medical treatment should be predicated upon a standard of care reflecting what is medically and scientifically reasonable. Legal science (jurisprudence) and medical science (evidence-based medicine) should be reconciled to improve patient care and outcomes. The use of antenatal corticosteroids in obstetrics during the 1990s illustrates how most jurisprudence for setting the standard of care for treatment is ill equipped to meet the fundamental aims of tort law. The proliferation of evidence-based medical practice provides a unique opportunity for the law to encourage best medical practice when setting the standard of care for treatment. It is argued that, eventually, the law should recognise clinical practice guidelines as the prima facie standard of care for treatment. This will provide legal certainty, appropriate medical practitioner accountability, and ultimately improve patient care and outcomes.