What Is a Medical Consent Form?

The name of the consent to surgery is different in different hospitals. There are surgical notice, surgical agreement, surgical informed consent, voluntary surgery, preoperative conversation records, etc., but the content, nature and role are the same. The "Medical Record Writing Code" issued by the Ministry of Health in August 2002 identified the name as the consent form for surgery.

Consent form

The name of the consent for surgery is different in different hospitals, including the operation notice, the operation agreement, and the operation.

Before the operation, the physician should explain to the patient or his family the dangers that may occur during or after the operation, and list a document describing the dangers that may occur.

As the nature of surgical consent differs, the definition of surgical consent is different. There are the following:

Surgery consent form means that the treating physician informs the patient about the operation to be performed before the operation, and the patient signs a medical document agreeing to the operation.

Surgery consent is a legal document made by the physician about the patient's upcoming surgical treatment plan, surgical risk, and other issues, and informs the patient or family members to make a choice with the other party's full knowledge, and also obtains authorization from the other party to perform the operation Writing materials.

(3) The consent form of the operation is the agreement between the doctor and the patient on whether to perform the operation.

Objectively speaking, and 's definitions of surgical consents are only expressed formally, without revealing their connotations. (3) Explaining some of the connotations of surgical consents, but not revealing their complete connotations.

To comprehensively and accurately define the concept of a consent form for surgery, the following two questions should be clarified: First, why is it necessary to sign a consent form for special medical actions such as surgery, but not required for general medical acts? The second is whether the consent form is a single law act or a legal act of both parties?

The author believes that the surgical consent is an agreement between the doctor and the patient that the patient authorizes the physician to perform the operation, and the patient voluntarily assumes the risk of the operation.

The "Medical Record Writing Rules" issued by the Ministry of Health stipulates that the contents of the consent to surgery include preoperative diagnosis, surgery

First, surgery is risky. The so-called risk is defined in the Oxford Dictionary as "damaged, disadvantaged or destroyed"

Regarding the nature of the patient's signed consent before surgery, there are several points of view:

Authorized consent

It is considered that the patient's pre-operative signed consent is the patient's authorization to consent to the physician's operation on his own body.

Surgical risk-taking agreement

It is considered that the patient's pre-operation signing agreement is the patient's agreement to the surgical risk clause proposed by the hospital, and expresses that he agrees to be willing to bear the surgical risk.

Incidental obligation

It is considered that the patient's signing and agreeing before the operation only has legal consequences in evidence, that is, the medical party has fulfilled the accompanying obligations of notifying the operation of the risks and other related conditions before the operation.

Domination theory

It is considered that the surgical behavior is an active injury treatment for the treatment and saving of patients, and is needed for the patient's health recovery. This need is at this time the main content of the patient's real health right. The patient receives external active injury treatment, which is the patient's right to health result.

Why does the patient's consent be required for special medical behaviors such as surgery, but not for other medical behaviors? Because compared with general medical behaviors, special medical behaviors such as surgery can cause harm to the patient's body (life and health), or cause significant changes to the patient's property interests, that is, the risk of personal or property risks. This risky medical practice involves the disposal of the patient's body and property. Surgical risk is a decisive factor in preoperative signing of patients. Surgical risk bearing is the main problem to be solved in the consent form. The patient's signed consent before surgery is because he needs to treat the disease. He authorizes the physician to perform the operation on his own body and is willing to take the risk of the operation.

Is the surgical consent a single law act or a legal act of both parties? In other words, is the surgical consent a contract? There are several views:

1. Surgery consent is not a contract and does not have the effect of a contract. The significance of the consent form is that the procedure is legal. The second is to show that the patient's due damage and possible risks to the operation are known.

2. The consent form can be regarded as a contract. Once the risks listed in the contract occur, the patient should bear it.

3 The consent form is a form of contract in which the risk liability clause is invalid.

Whether a surgical consent is a contract must be measured by the characteristics of the contract. A contract is an agreement between natural persons, legal persons, and other organizations that are equal subjects to establish, change, or terminate civil rights and obligations. Legal characteristics of the contract: The contract is a civil legal act of two or more parties; The purpose of entering into a contract must be to create, change, or terminate a certain civil rights and obligations relationship; The parties to the contract have equal legal status.

First, the consent of the surgeon not only has the patient's consent, but also contains the doctor's notification, which is a legal act of both parties.

Second, whether the operation depends on the willingness of the patient, the legal status of both parties is equal.

Third, rights and obligations are set between doctors and patients.

Doctor's rights and obligations: The doctor has the right to perform surgery on the patient's body based on the consent. At the same time, the medical party is also obliged to provide surgical treatment services. Such rights and obligations are actually the same, because the practice of medical treatment on the patient's body is both a right and an obligation of the doctor.

Patients' rights and obligations: Once the patient signs and agrees, they have the right to receive surgical services, provide the body with the obligation to perform surgery, pay the cost of surgery, and bear the risk of surgery.

The rights and obligations set in the surgical consent form are invisible and implied. Who should bear the risk of the operation cannot be directly derived from the surgical consent form, but it can be inferred from the terms. The doctor informed the patient that the operation should be performed. There are risks to surgery, and patients agreeing to surgery means that they are willing to assume the risks of surgery, which is a self-explanatory statement.

The consent form of the operation conforms to the characteristics of the contract. It is the agreement between the doctor and the patient about the risk of the operation and the risk of the operation. It is an atypical contract.

Whether the terms of the surgical exposure are valid

There is an opinion that the clause that the patient bears the risk of surgery in the consent form violates Articles 41 and 53 of the Contract Law, and the exemption clause is invalid.

Does the clause in the consent form for the patient bear the risk of surgery violate the provisions of Articles 41 and 53 of the Contract Law? A careful analysis of the relevant provisions will make it clear. Article 41 of the Contract Law stipulates that if a party that provides a formal clause absolves its liability, aggravates the other party's liability, or excludes the other party's main rights, this clause is invalid. Article 53 stipulates that the exemption clause in the contract for causing personal injury to the other party is invalid.

The occurrence of surgical risk is not caused by the fault of the physician or has nothing to do with the patient. It is an adverse consequence of the limitations of the development of medical science.

If the physician enumerated the conditions that the medical staff can prevent through the efforts in the clause of the surgical risk, it is not a surgical risk, and it violates the provisions of Articles 41 and 53 of the Contract Law. Of course, this part that is not a surgical risk is of course invalid. of.

If the agreement on surgery only stipulates that the patient bears the risk of the operation, it does not mean that the medical party is exempted, the patient is aggravated, or the patient s main rights are excluded. It does not include the medical party s intentional or negligent failure to take responsibility for the patient s personal damage. meaning. The author believes that the agreement on who should bear the risk of surgery in the consent form does not violate the provisions of Articles 41 and 53 of the Contract Law and is therefore valid. This is because:

Special medical acts such as surgery are risky. The law does not require the actor to assume no fault liability, but only adopts the principle of presumption of fault. If the actor's faultlessness is not exempted through the exemption clause, but it has indeed caused adverse consequences to the other party, in fact the use of the exemption clause in the medical industry will be banned and the medical staff will be intimidated, which will greatly limit the normal business development of the medical industry, Obstructing the development of medical science will ultimately harm the legitimate rights and interests of patients.

Victim consent is an important legal principle of tort law. In ancient Rome, there was a legal saying that "consensus is not illegal". The consent of the victim must meet the following requirements: The consent of the victim must be made in advance; The consent of the victim must be clearly stated; The content of the victim's consent is the commitment to the consequences of future damage, so as to avoid the offender from the damage Responsibility for consequences; Victim consent must be true and voluntary; Victim must have the ability to consent; Victims must do their duty to fully inform and explain; must not violate the mandatory provisions of the law and public order, good customs. The surgical risk-taking clause in the surgical consent form complies with the above requirements.

It is gratifying to note that although China s current laws do not provide for the voluntary exemption of risks or voluntary damages as the exemption of the offender, Article 22 of the draft draft of the Chinese Civil Code and Tort Law, drafted at Renmin University of China It stipulates "voluntarily bear the damage" clause, which stipulates that "If the victim expressly agrees to perform an injurious act against him and voluntarily bears the consequences of the damage, the actor will not bear civil liability. The content of the victim's voluntary damage is in violation of the law or the public Ethical persons shall not be exempt from the civil liability of the perpetrators. "

(3) In the case of fully exercising the right of informed consent, patients as potential gainers should bear potential surgical risks, and the adverse consequences of non-medical faults should be borne by the patients themselves. Regardless of whether the validity of the clause on surgical risk acceptance in the consent to surgery is theoretically recognized, the way in which the surgical risk is assumed has always operated in this way, and the theory just makes a logical interpretation of this operating mode in practice.

In summary, the consent form is neither a "birth and death" nor a "talisman". It is a doctor's operation on the patient's body. The basis for the patient's consent to bear the risk of the operation is the rights and obligations of both doctors and patients in the medical treatment. Specific manifestations.