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.
陆青 章晓英. 《民法典》时代近亲属同意规则的解释论重构[J]. 浙江大学学报(人文社会科学版), 2020, 6(6): 48-.
Lu Qing Zhang Xiaoying. 《民法典》时代近亲属同意规则的解释论重构. JOURNAL OF ZHEJIANG UNIVERSITY, 2020, 6(6): 48-.