Hormilization between Patient's Self-determination Rightsand Physician's Duties

• Main Authors: LEE, HSIAO-LING, 李筱苓
• Other Authors: CHIU, WEN-HUI
• Format: Others
• Language: zh-TW
• Published: 2018
• Online Access: http://ndltd.ncl.edu.tw/handle/8rf9jr

碩士 === 東吳大學 === 法律學系 === 106 === The topic of interest in this article centers around patients’ right to autonomy and self-determination. This study traces back the evolution of the laws and practice relating to the removal of life support in the context of medical decision-making in the United States, where the concept of patient autonomy originates, in the hope to identify relevant connections and examples for limitations on the forms of life support that can be removed upon request under the new Patient Self-Determination Act in Taiwan. Furthermore, the author combs through cases brought before the criminal and civil courts as well as the administrative tribunals since the Hospice Palliative Care Act came in effect more than a decade ago, finding that medical institutions and physicians rarely become involved in suits, actions or legal proceedings for limiting life support procedures as part of the palliative care given to patients in accordance to the law. In the few cases arising out of a dispute over the practice, the decisions handed down by the courts were based on the following grounds: whether the medical institution has fulfilled its duty to disclose and inform the treatment plans, whether a proper consent has been obtained from the patient or his/her family members, and whether the treatment was planned and given in a way that would meet the standards expected of a normally competent doctor. The courts generally dismissed the few cases of limited relevance or ruled in the medical institution or the physician’s favour. The sole exception where a district court ruled against a medical institution and a physician was decided not for a reason related to withdrawal of life support in palliative care. The defendants in the case were found liable because their treatment of bacterial meningitis with antibiotics deviated from the normal medical practice. The case was appealed to the higher courts and decided in favour of the hospital and the physician. It is reasonable to conclude physicians are required to practice medicine in a way that meets the standards expected of a normally competent peer, provided that the patients are fully informed of the treatment plans/risks and giving consent accordingly. The cases were all decided in favour of the medical institutions and physicians because they complied with these rules. In other words, the withdrawal of a patient’s life support by a physician in accordance with the law is already a legally sanctioned act. Moreover, the question of preemption in applying the Patient Self-Determination Act and other statutes still awaits clarification. It is suggested that the competent authority overseeing the Patient Self-Determination Act should study the said question and comes up with a solution in preparation of the introduction of the new Act. The issue of preemption in conflicting laws must be clarified in the regulations and rules in support of the implementation of the Patient Self-Determination Act. This article finds that great ambivalence exists in the regulatory landscape governing terminal care, as the Patient Self-Determination Act and the Hospice Palliative Care Act have conflicting rules to which terminally ill patients are required to comply. The solution to the current legal uncertainties, as proposed by this author, is to revert to the original state of the law and regulate terminal care with the Hospice Palliative Care Act. Finally, the author suggests that a monitoring mechanism be created to keep track of and conduct statistical analysis of the annual number of life support withdrawals as soon as the Patient Self-Determination Act becomes effective in 2019. The statistics should neither be used as evidence supporting any criminal or civil liabilities in legal proceedings, nor for any purpose other than data monitoring and analysis. Such policy will encourage truthful data reporting, allowing the regulators to review and assess the effectiveness of the law and the consequent measures of improvement.