Informed Consent and Related Civil Liability in Chinese Law: Focusing on Article 1219 of the Chinese Civil Code
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As an important guideline in Chinese medical legal system and a basic professional norm in the clinical practice, the patient informed consent is critical for enhancement of the level of Chinese medical civilization and establishment of a harmonious doctor-patient relationship. Thus, there are some revisions on the provision about the patient informed consent in the new Chinese civil code issued in 2019. In this paper the background, content and impact on medical and judicial practice of these revisions of the provisions are addressed. Article 1219 of the Chinese Civil Code about the informed consent basically follows the legal structure of Article 55 in original Chinese Tort Liability. The modifications and improvement have been made on the medical disclosure duty in three aspects: raising the standard of inform duty, enrichment of the forms of patient consent and the supplement of legal basis for “substituted consent”. The modifications of provisions about informed consent in the CCC reflect the improvement of the legislator’s understanding on patient informed consent, and are also the inevitable results of the requirements of patient informed consent in practice. Moreover, this paper analyzes the civil liability system related to informed consent. In addition, some problems in judicial practice, for examples, the inconsistency of the judgment standards of the duty of medical staff to inform, the unclear definition of damage on the patients, and the incomplete analysis of causal connection, have been pointed out. This paper also discusses the special rule about burden of proof in the informed consent claim, and examines why judges tend to heavily rely on medical expertise during the trial of such cases. Finally, the causes of the above problems as well as the corresponding solutions are analyzed.
Abstract
As an important guideline in Chinese medical legal system and a basic professional norm in the clinical practice, the patient informed consent is critical for enhancement of the level of Chinese medical civilization and establishment of a harmonious doctor-patient relationship. Thus, there are some revisions on the provision about the patient informed consent in the new Chinese civil code issued in 2019. In this paper the background, content and impact on medical and judicial practice of these revisions of the provisions are addressed. Article 1219 of the Chinese Civil Code about the informed consent basically follows the legal structure of Article 55 in original Chinese Tort Liability. The modifications and improvement have been made on the medical disclosure duty in three aspects: raising the standard of inform duty, enrichment of the forms of patient consent and the supplement of legal basis for “substituted consent”. The modifications of provisions about informed consent in the CCC reflect the improvement of the legislator’s understanding on patient informed consent, and are also the inevitable results of the requirements of patient informed consent in practice. Moreover, this paper analyzes the civil liability system related to informed consent. In addition, some problems in judicial practice, for examples, the inconsistency of the judgment standards of the duty of medical staff to inform, the unclear definition of damage on the patients, and the incomplete analysis of causal connection, have been pointed out. This paper also discusses the special rule about burden of proof in the informed consent claim, and examines why judges tend to heavily rely on medical expertise during the trial of such cases. Finally, the causes of the above problems as well as the corresponding solutions are analyzed.
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