Microsoft Word - 7-SSEAEM700排版.docx BCP Social Sciences & Humanities SSMI 2022 Volume 17 (2022) 31 The Conflict Problems and Solutions Between Informed Consent Right and Right to Life and Health----Comparative analysis before and after the promulgation of the Civil Code of the People’s Republic of China Yicen Liu Southwest University of Political Science & Law, Chongqing 404100, China 1064383124@qq.com Abstract. Before the promulgation of the Civil Code of the People’s Republic of China, there was a conflict between patients' right of informed consent and patients' right to life and health, which mainly came from three aspects: medical staff, patients and the lack of law. Compared with existing laws and regulations, the Civil Code not only further defines the scope of the right of informed consent, but also makes detailed provisions on the obligation of medical notification and the right of emergency intervention. In order to alleviate the conflict between the two, the author puts forward improvement suggestions from three aspects: improving the legal details, popularizing the legal awareness and promoting the medical insurance system. In the introduction part, this paper makes a analysis of the informed consent right prior to the promulgation of the Civil Code, and the second part lists relevant cases. This paper analyzes the reasons for the conflict of informed consent rights in Part III and explains the relevant amendments made in the Civil Code in Part IV. This paper also summarizes the solutions of alleviating the informed consent dispute and makes relevant suggestions. Keywords: Informed Consent Right; Right to Life and Health; Civil Code of the People’s Republic of China. 1. Introduction On January 1,2021, the Civil Code of the People's Republic of China officially came into effect. Before this, with the gradual expansion and intensification of medical demand, the doctor-patient relationship tended to become more tense. Disputes over patient informed consent emerge in endlessly, and both patients and medical staff are negatively affected to varying degrees. One of the major reasons for the disputes between medical staff and patient groups is the incomplete communication between the two sides, which leads to misunderstanding and violent conflicts. To a large extent, there is an incomplete connection between the medical notification obligation of medical staff and the informed consent right of the patient group or patients' families, resulting in a conflict between the choice of medical procedures and the wishes of patients or their families. In the case of a conflict between the two, the patient group or the patient's family members misunderstand the opinions of the medical staff or blame the medical staff for infringing on the "informed consent right" related to the patient group or the patient's family members. According to relevant data statistics, between 2010 and 2020, the proportion of medical and judicial cases caused by medical communication problems reached 60%.[1]Therefore, in the current medical environment, how to avoid the disputes existing in patients' informed consent right to a greater extent is an urgent problem to be solved in Chapter VI, the Civil Code provides a more detailed definition of "liability for medical damage", while further protecting patients' right to informed consent and the legal rights of medical personnel. BCP Social Sciences & Humanities SSMI 2022 Volume 17 (2022) 32 2. Case analysis of the violation between informed consent right and patient's right to life and health before the promulgation of Civil Code 2.1 Case analysis of informed consent performed by patients themselves 2.1.1. A case where the doctors respect the wishes of the patient In 2010, a woman in Jiangsu province, China, went to a local hospital alone for childbirth. Doctors suggested an immediate cesarean section. In critical cases, the woman resolutely refused to provide family contact information and was reluctant to perform plane surgery because the medical treatment was expensive. Doctors delayed the operation without obtaining the patient's signature, leaving the woman's baby born, and the doctor was under pressure from public opinion. In that case, the woman was the only person who was able to exercise the right of informed consent. [2]The refusal to accept the medical plan provided by the doctor eventually leads to the damage of her right to health and life.In the process of medical treatment, the doctor has exercised the corresponding medical notification obligation to the patients to the maximum extent, but still chose to respect the patient's right of informed consent even when the threat to the patients' right to life and health was serious.Under sections 55 and 56 of the Tort Liability Act [16], the behavior of the doctors fully meets the legal requirements, but in the face of public opinion disputes, the doctors still appropriately compensated the patients out of ethics. 2.1.2. A case where the doctors go against the patient's wishes In 2009, a female breast cancer patient in a city in China was treated for cancer in a local hospital.The doctor recommended a holistic resection of the chest to reduce the risk of cancer recurrence, but the patients adhered to local resection to maintain their body.During the operation, the patient was unconscious and not accompanied by her family members, but because the cancer cells had been completely spread, the doctor chose to perform a total chest cutting surgery on the patient, which saved the patient's life.However, the patient claimed compensation from the hospital, and the hospital lost to compensate the patient more than tens of thousands of yuan and apologized to the patient. In this case, according to section 56 of the Tort Liability Act [16], medical parties are faced with more urgent medical situations and cannot obtain the opinions of the patient or the patient agent, and emergency medical measures can be implemented after the approval of relevant procedures[3]. However, the hospital eventually faced huge compensation due to the patient's clear request before surgery and the inability to face an emergency life threat during the operation. In this case, the emergency option of the doctor cannot be strongly guaranteed, which results in some cases, the doctor dare not implement the emergency measures easily, which may eventually damage the patients' right to life and health. 2.2 Case analysis of family members of patients acting for informed consent 2.2.1. A case where the doctors respect the requirements of patients' families According to the "Li Liyun case" in 2007, the medical department clearly advised the patient for cesarean section according to the actual situation of the pregnant woman. Pregnant women Liyun Li signed on the operation consent, but because the patient cohabiting XiaoMou as the patient agent for patients with informed consent and resolutely refused to sign surgery, the hospital cannot operate without patient agent’s operation signature, the result of the woman was death finally.[4] This case has received great attention from the society, and the case involved the scope of the right of informed consent, which has been controversial in the relevant judicial cases.When the patient and the patient agent exercise the right of informed consent at the same time, the choice of doctors becomes more complicated, which can easily cause doctor-patient disputes caused by the conflict of informed consent right.This case also reflects a part of the existence of the emergency option owned by the medical side and the informed consent right of the patient agent. Thus, when the scope of the BCP Social Sciences & Humanities SSMI 2022 Volume 17 (2022) 33 right of informed consent is blurred, the doctor's emergency choice will face certain legal difficulties, which may face a greater risk of damaging the patients' right to life and health. 2.2.2. A case where the doctors go against the wishes of the patient's family According to the famous "Zhou Fazhi case" in 2008, when the patient suffered from massive bleeding after childbirth, and the doctor immediately made medical advice to the patient's family to remove the patient's uterus, but the patient's husband, Hu, performed the informed consent as the patient's agent and refused to sign the consent to remove the patient's uterus.Due to the serious threat to the patient's life, the hospital implemented the emergency rescue right without the patient's signature and timely performed the hysterectomy for the patient, which finally saved the patient's life.[5]In this case there are two big conflicts, the first is the patient's health right and patient agent informed consent larger conflict, the second is the medical personnel of emergency rescue and the patient agent's informed consent conflict, but essentially the root of the two conflict is the patient group autonomy and patient's life and health right conflict. 3. Reasons for the conflict between the right of informed consent and patients' right to life and health 3.1 The doctor fails to perform or fully fulfill the obligation of medical notification According to the relevant data of the China Judicial Documents Network, in recent years, 101 cases of common informed consent disputes were related to the "medical notification obligation", accounting for a large proportion of the total cases.In the face of informed consent disputes, patients or their family members may make risky decisions because the doctor does not fully fulfill the medical notification obligation, thus bringing a certain degree of negative impact on both doctors and patients. Usually, it is rare for medical institutions to fail to fulfill the obligation of medical notification at all. In most cases, medical parties do not fully inform patients, resulting in disputes over some patients' right to know. Before the promulgation of the Civil Code, China had some relevant provisions on the content of medical notification obligations and the way of medical notification. The medical inform content in medical law includes: ①Risk ②Surgery, special examination, special treatment ③Disease, diagnosis, treatment ④Disease, medical measures, medical risk ⑤Measures when medical disputes ⑥Surgery or clinical trials. Only some of these medical notifications require oral, written, or explicit consent. 3.2 The patients or their agent make decisions for personal gain In different personal factors or family circumstances, patients or patient agents will make different choices in their personal interests while enjoying the right of informed consent. However, they also have different considerations when making medical choices, resulting in different medical outcomes. In the past decade, the number of conflicts between the right of informed consent and the right to life and health c aused by the patient or the patient agent himself is still increasing. The own factors considered by the patient or the patient agent mainly include the following aspects: First, the patient or the patient agent exercises the right of informed consent under the consideration of the economic condition and causes the loss to the patient's right to life and health.According to the 2021 National Health Commission, the national health insurance coverage is 96.8 percent, but many families are unable to pay for expensive medical costs when faced with serious illness[9]. In many disputes over informed consent, patients or patient agents still choose conservative treatment or give up treatment after listening to the doctor's reasonable condition explanation and medical arrangements, thus threatening the life and health safety of patients.Usually, there are two main cases of informed consent disputes caused due to economic reasons: ① patients choose medical means that conflict with their right to life and health in order to reduce the economic burden BCP Social Sciences & Humanities SSMI 2022 Volume 17 (2022) 34 of their families.② When the patient agent performs the informed consent right for financial reasons, sometimes the patient's disease can not be effectively treated. Second, patients or patient agents have internal family conflicts, resulting in disputes over the right of informed consent.In this case, conflicts within the family often interfere with the patients or their families' reasonable use of their own informed consent.If the patient signs an informed consent form, the patients may choose a medical plan that is not suitable for themselves because of family disputes, or even excessively resist the treatment, thus threatening his right to life and health. Third, patients or patient agents make medical choices that conflict with the patients' right to life and health due to psychological reasons. Under the influence of some diseases or other external factors, patients or patients' family members may have psychological fear and have doubts or resistance against the advice of medical staff. Therefore, it is also possible to use the right of informed consent to make drastic decisions, thus damaging the life and health safety of patients. 3.3 There are deviations in patients' or patient agents' perception of medical treatment Misunderstanding of the content of medical staff caused by the limitation of patients' cognitive level leads to disputes over patients' right of informed consent. Due to the inconsistent understanding of medical related knowledge, although medical staff fully fulfill the obligation of medical notification, they may not fully understand the risk of related diseases and the necessity of some treatment means, and may even misunderstand and misinterpret the ideas of doctors. "Tao Yong case" in 2020 event has reflected that such a situation is not rare, the doctor Tao Yong in fully told the patient's family after full and detailed medical treatment after the operation, but the family after the surgery thought that Tao Yong doctor didn’t tell them the postoperative patients sequela and eventually cut Tao Yong doctor and three other people. In this case, the doctor has repeatedly emphasized the risk of the operation and sequelae to the agent of the patient before surgery as much as possible. However, the subjective prediction of the surgical effect according to their own cognition leads to the large difference between the postoperative effect and the imagined results of the patient agent. Therefore, the cognitive gap between patients or patient agents has been widespread in the existing doctor-patient relationship and may cause serious doctor-patient disputes at any time. 3.4 There are some errors in the definition of informed consent in relevant laws and regulations before the promulgation of Civil Code Before the promulgation of the Civil Code, there were many laws and regulations on the definition of the informed consent right in China, but they were independent of each other. The right to informed consent is widely defined as that the patient or patient agent understand the patient's pathological condition and make medical advice on whether to take medical staff. Article 26 of the Law on Medical Physicians, Article 33 of the Regulations on the Administration of Medical Institutions have made more detailed provisions on the definition of the right of informed consent. [10]However, there are still some errors between these laws and regulations, which leads to a certain conflict between the right of informed consent and patients' right to life and health. The main errors exist in the following two aspects: First, there is a vague zone in laws and regulations defining the right of informed consent by patients or by patient agents. For example, in the case of Liang Xinghe, the person voluntarily donated the kidney to a relative, but his wife said that the behavior did not obtain the family's consent. This case involves the ownership of informed consent, Article 30 of the Interim Provisions on the Management of Clinical Application of Human Organ Transplantation Technology requires that the family members of the parties concerned must be signed before organ transplantation, but the Regulations on Human Organ Transplantation does not require such a requirement, so there is a judicial definition error problem. In the face of the exercising groups that clearly stipulate the right of informed consent, if there are different statements in the laws and regulations, then the right of informed consent is likely to conflict with the patient's right to life and health. BCP Social Sciences & Humanities SSMI 2022 Volume 17 (2022) 35 Second, there is a dispute over the scope of patient agents in relevant laws and regulations. When the patient cannot exercise their right of informed consent, the doctor needs to determine the specific medical plan and costs through the patient agent.However, before the promulgation of the Civil Code, the scope of the choice of patient agents by laws and regulations was also controversial. Section 55 of the Tort Liability Act [16] stipulates that patients must be their "close relatives" to have the right to perform the patient's informed consent as an agent, but it is still not clear enough.For the definition of close relatives, there are also different interpretations among different laws and regulations in China. 4. Relevant amendments made in the Civil Code to alleviate the conflict between the right of informed consent and the right to life and health 4.1 Civil Code further clarifies the definition of informed consent The Civil Code is found in Article 1,219[17] clearly states that "medical personnel should explain the condition and medical measures to the patients in the diagnosis and treatment activities", but on the premise of "cannot or should not explain to the patient", "they should explain to the patient's close relatives and obtain clear consent". Before this, there have been conflicts between relevant laws and regulations among the executors of the right of informed consent. In many medical disputes, there are still disputes over the right of informed consent due to the disagreement between the patient and the patient agent. The detailed interpretation of this issue made in the Civil Code directly solves the dilemma of the medical side when choosing the executor of the informed consent right. The revision of the Civil Code is mainly explained from three perspectives: First, Article 1,219 of the Civil Code first clearly states that medical staff should give priority to explaining the condition and related medical measures to the patients themselves. In the face of the need for special surgery and other medical means, the doctor should also clearly explain the relevant risks and the alternative medical means to the patients themselves. In the first part of this section, the Civil Code makes the right of informed consent the priority of the patient himself. That is to say, what the medical side needs to make and what the medical methods must be explained to the patient himself first. And it also further shows that patients have the absolute priority power to fully understand their own condition and choose their own medical treatment mode. In this revision, the Civil Code puts forward clear requirements on defining the priority holder of the right of informed consent, which will also give priority to protecting the will and legitimate rights and interests of patients in the future medical issues. In addition, the determination of the priority will also relieve the pressure on patients and their families to some extent, and will further protect the safety of doctors. Second, the second half of Article 1,219 of the Civil Code continues to explain special circumstances accordingly. In the case of "cannot or not easy to explain to the patient", the doctor should "explain to the patient's close relatives" and "obtain his clear consent”. It can be clearly seen that only when patients cannot exercise their personal right of informed consent can doctors inform their patient agents, which also reflects the executive advantage of patients having the absolute right of informed consent. In addition, the Civil Code also imposes restrictions on medical workers 'choosing patients' legal agents, whose "close relatives" must use the power instead of the right of informed consent. In Article 1,045, the Civil Code specifies the scope of relatives and close relatives. Among them, close relatives refer to the spouse, parents, children, brothers and sisters, grandparents, grandchildren[11]. This detailed definition clarifies the scope of the choice of informed consent agent, thus further alleviating the dispute of partial informed consent. Third, the Civil Code puts forward the requirement of "clear consent" in the relevant provisions of the right of informed consent. Clear consent can be understood as requiring a clear attitude from the patient or the patient agent. The "clear consent" regulation further protects the rights and interests of both doctors and patients. For the patient, "clear consent" is generally manifested in the form of oral clear consent commitment and written consent signature, such an exact form can ensure that the BCP Social Sciences & Humanities SSMI 2022 Volume 17 (2022) 36 doctor's medical form is fully recognized by the patient, so as to protect the patient's right of informed consent. For doctors, the patient's "clear consent" can ease the doctor-patient disputes. 4.2 The Civil Code clearly stipulates doctors' duty of medical notification and right of emergency intervention 11,119 and 11,120 of the Civil Code [17] puts forward clear requirements on the specific contents of medical personnel's medical notification obligations and the medical measures in emergency situations, and also stipulates the compensation liability when the medical party fails to fulfill the obligation of medical notification. In doctor-patient disputes, the definition of the rights and obligations of doctors is particularly important, which can strengthen the protection of patients' right to life and health and the safety of medical staff themselves. The relevant revision of this part is mainly reflected in the following two aspects: First, Article 1,219 of the Civil Code clearly stipulates that medical personnel need to explain the condition and related medical measures to the patient or his close relatives. In addition, when faced with special treatment methods such as surgery, compulsory personnel should also timely explain medical risks and alternative medical solutions. This regulation is to further clarify the medical notification obligation of medical personnel, thus reducing the subjective influence and arbitrary medical risks caused by doctors in the medical notification behavior. Before the clear provisions of the Civil Code appeared, although relevant laws and regulations required medical notification for medical staff, neither the content nor the necessity of notification had not been effectively guaranteed. The Civil Code gives more detailed responsibilities to the "medical notification obligation", which reduces the subjective diagnosis of doctors to a certain extent and protects the rights and interests of patients. Second, Article 1,220 of the Civil Code also makes more detailed provisions on the right of emergency intervention of doctors. The right to emergency intervention is clearly given with three preconditions: ① Doctors needs to be regarded as "urgent" if the patient is in danger. ② Medical staff need to first respect the right of informed consent of patients or close relatives if they fail to apply to the medical institution. ③ Medical staff must have the approval of the relevant person. In cases where previous emergency intervention conditions are not clear, doctors will fall into the dilemma of whether to adopt the right of emergency intervention. In many cases, doctors will face large medical disputes after taking emergency intervention, which will affect the correct choice of medical staff in the future medical process [13]. The Civil Code defines three prerequisites for medical workers to intervene urgently and protects the rights and interests of doctors to conduct emergency intervention. Once the emergency intervention behavior meets the specific requirements of these three conditions, it is legal. 5. Solutions of conflict mitigation between informed consent right and patients' right to life and health 5.1 Further clarify relevant provisions on informed consent according to Civil Code 5. 1. 1. The chronological relationship between relatives Although the patient can not perform the right of consent, there will still be disputes over the right of informed consent if the patient's close relatives have different opinions. If the patient's close relatives and the doctor cannot make a rapid choice, the patient's right to life and health may be damaged. According to the current order rules of inheritance and guardianship, the parents of the patient, adult children and spouses are the first to enjoy the informed consent of the patient, and then other close relatives [14]. According to the actual situation, the first priority agent choice should respect the individual wishes of the patients, which also satisfies the provisions that the patients themselves have the preferential right of informed consent. In addition, when stipulating the issue of succession, the BCP Social Sciences & Humanities SSMI 2022 Volume 17 (2022) 37 attitude of the agent is conducive to the patients' life and health, and the law should also give priority to protecting the patients' right to life and health. Finally, the internal disputes and the economic situation should also be paid some attention to. 5. 1. 2. The informed consent right of the "non-close relatives" agent For patients without close relatives, medical staff will face the dilemma of having no patient agent to choose from when conducting relevant diagnosis and treatment problems. The delay in time and energy is likely to delay the patient's condition and thus damage the patient's right to life and health. Therefore, the law can further extend the patient agent from the patient's close relatives to some non-close relatives, so as to fully protect the patients' right to life and health. In addition, whether the non-close relatives can bear the corresponding responsibility and other factors are also a relatively important consideration. 5. 1. 3. Special powers of intervention by doctors Current medical technology and medical conditions do not ensure that the medical staff can make the final medical results meet the expectations of the patient or the patient agent after every emergency intervention. Although the Civil Code clearly stipulates the conditions for medical personnel to implement the right to emergency intervention, the current laws and regulations still lack the protection of exemption for medical personnel'emergency intervention. As a result, some patients will feel that their informed consent right is damaged after the emergency intervention. Medical behaviors have a high risk for the long time, and the medical methods that doctors take in conducting emergency intervention are also quickly decided according to the specific circumstances. There is no complete standard to determine whether doctors adopt the best emergency intervention, so once the intervention results do not satisfy the patient or the patient agent, more informed consent disputes will arise[15]. The relevant law should set the criteria for judging whether the medical means chosen by medical personnel under emergency intervention meet the reasonable standards, and thus can reduce the conflict with the patient's right to informed consent. Only when doctors' emergency intervention immunity is fully supported by law can they try their best to treat patients in the face of emergency medical treatment to optimize the medical effect. 5.2 Strengthen the cultivation of legal awareness between both doctors and patients For the medical side, although most of the medical staff have higher degrees, they will also have insufficient understanding of the specific legal problems. Relevant government institutions and medical units can regularly train and assess medical personnel according to relevant laws, so that specific ways can implement the cultivation of medical and legal awareness [15]. Detailed rules and regulations can make the law more vivid and easy to understand, and the medical staff can also handle the relevant issues comfortably. When the medical party violates the law, the relevant institutions should give a fair trial and punishment. For the patients, the main purpose of most patients using the informed consent right to provoke medical disputes is to gain financial benefits. The range of the affected group is relatively wide, so their moral quality and legal awareness are uneven. In order to enable the patient to have a better legal awareness related to medicine, the active publicity between the state and the government is essential. Relevant publicity should not only let the masses learn to use legal weapons to protect their life and health rights or close relatives, but also avoid the behavior of some patients maliciously attacking medical staff to obtain additional benefits. 5.3 Accelerating the improvement of the medical security system The national health care system is also an important tool to reduce disputes over informed consent. In recent years, many doctor-patient disputes often have economic factors. Some doctors cheat the patient because of the temptation of money, thus causing the double loss of economic and health. More importantly, when most patients face economic shortage, the patient may deliberately use the right of informed consent to make malicious claims from the medical side, and the patient may also BCP Social Sciences & Humanities SSMI 2022 Volume 17 (2022) 38 choose to give up treatment because they cannot afford the medical price. Therefore, the further improvement of the medical security system is particularly important. The state and the government can expand the coverage of health insurance, so that more types of diseases can be subsidized. In addition, the proportion and amount of medical insurance should also be adjusted appropriately according to the specific situation. Only under the perfect legal support and strict supervision and management can the medical insurance system play a greater effect. 6. Conclusion The doctor-patient relationship in China has been in a relatively tense stage, and the coming conflict of informed consent also needs to be solved urgently. The existing related cases show many reasons for the conflict between the right to informed consent and the right to life and health. After the promulgation of the Civil Code, the conflict of informed consent rights in China was further solved. The Civil Code clarifies the relevant provisions of the right of informed consent and medical notification obligation from two aspects of patients and medical personnel, so as to better protect patients' right to life and health. However, there are still many loopholes in the conflict between the right to informed consent and the right to life and health, which need further revision of the law. In addition, excluding the legal adjustment means can also solve some of the conflict of informed consent, with the help of legal means and other auxiliary solutions, the doctor-patient conflict will also be further alleviated. References [1] Gong Saihong, Dong Junxia. The —— starts from the core concept of the protection of patients' informed consent right [J]. Journal of the Graduate Academy of the Chinese Academy of Social Sciences, 2009 (05): 62-68. [2] Ding Lei. 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