A Study on the Status of Parent-child Relationship in the Decision-making about the Medical Treatment of Minors--Focusing on Patient Autonomy and Best Interest of Minors

• Main Authors: CHANG, YA-PEI, 張雅珮
• Other Authors: KUO, CHICH-HENG
• Format: Others
• Language: zh-TW
• Published: 2005
• Online Access: http://ndltd.ncl.edu.tw/handle/51531876921435915522

碩士 === 國立臺北大學 === 法學系 === 93 === 　　In the medical decision-making concerning minors, the traditional view that parents have the rights to make medical decision-making for their children is called into question. There are several reasons for this: first, the medical treatment is intrusive, dangerous, serious, ethical, and private; second, the minors tend to be precocious and their level of maturity would be different according to their backgrounds and educations. Besides, the numbers of abused and neglected children are increasing. Therefore, the current study believes that the minors with the decisional capacity should afford autonomy in their own affairs, and the Government has the duty to put the limitation on parental rights for minors’ welfare. This study attempts to devise the legal institutions of minors’ medical autonomy and find out the basis of limiting parental rights to make medical decisions for their children from the viewpoint of the comparative law. The objectives of this study are to safeguard the subjectivity of minors in the medical decision-making, to reconcile the parental rights, and to make the medical decisions that conform to the minors’ inclinations and welfare. 　　First, this study illustrates the development of the relationship among the Government, parents and children to seek out the basis and standard of review about restricting parental rights. Then, the American and English laws are introduced about the medical decision-making rights of parents. The solutions, procedures and standard for the medical conflict are also presented. After reviewing this literature, this study provides some results as followed. Because the patient decisional capacity are based on comprehension and judgment, when minors have reached the maturity to decide for themselves, they should be independent from their parents and make their own decisions. American and English precedents, which exercise “the mature minor doctrine” and “the bypass procedure”, are cited as proof that the minors with competence should have medical autonomy in formal and severe medical treatments, such as sterilization, abortion, and life-sustaining medical treatment, etc.... This part also illustrates the judgment standard of maturity, the protection of medical privacy and the legal status of parents. However, when children are incompetent, the medical decision that was made by parents may not serve children’s best interests, or was not appropriate for parents making in essence. Therefore, this study tries to discriminate medical treatments by different health interests of minors to help deliberating that could the children’s welfare override the parental medical decision-making rights? Could the parental rights be limited? How could the competing values be balanced? How could the parental rights be weighted? How could an opportunity be offered for children to participate and speak in cases? 　　Finally, this study bases on these to discuss the scope of minors’ autonomy and parental rights, and the standard of judicial review in Taiwan society, laws and constitution. The results of study are that the parents play a decisive role in medical decision-making in Taiwan. The minors’ autonomy and interests are ignored seriously. This study suggests the ways to deal with and reform properly to prevent parents from disregarding children’s interests in Taiwan laws, and to reconcile minors’ medical autonomy and interests with parental rights.