Giesen D
Institute for Private Law, Free University of Berlin, Germany.
Med Law. 1993;12(6-8):553-65.
Since every person has the right to determine what will be done to his or her body, he or she has the right to decide whether or not to undergo medical treatment. If this decision is to be more than a pure formality, the patient needs to be fully informed of what that decision entails, and so has a right to know of the risks involved in the treatment he or she is considering. A physician has a corresponding duty to impart the information which the patient needs to enable him or her to reach such an informed decision. This article traces developments in common-law and civil law jurisdictions and considers the extent to which they protect the patient's right to know. The comparative law analysis reveals that English law has tended to fall behind both its common-law relatives and its European neighbours in the amount of protection it affords to this fundamental right because it has allowed liability to be determined by a negligence standard which treats a physician's conformity with the practice of a body of medical opinion as conclusive evidence that he or she has discharged his or her duty. The article warns of a further threat to the patient's right to make an informed decision which has arisen in other common-law jurisdictions in the guise of the so-called 'reasonable patient', whose abstract nature means that his or her presence in standard of care and causation questions brings with it an evidential void which tends to be filled by the evidence of medical experts so that a physician may, once again, be relieved from liability even though he or she has failed to disclose information that the patient before him or her needed to know for the purposes of a treatment decision. The conclusion to be drawn is that only where the standard of care is based on the needs of each patient rather than the opinion of a body of doctors, and only where the focus is kept on the actual patient rather than the hypothetical 'reasonable patient' is the patient's right to know properly protected.
由于每个人都有权决定对自己的身体采取何种措施，因此他或她有权决定是否接受治疗。如果这一决定不仅仅是一种纯粹的形式，那么患者需要充分了解该决定所涉及的内容，因此有权知晓其正在考虑的治疗所涉及的风险。医生有相应的义务提供患者所需的信息，以便其能够做出这种明智的决定。本文追溯了普通法和民法管辖区的发展情况，并考虑了它们在多大程度上保护患者的知情权。比较法分析表明，英国法律在保护这一基本权利方面，往往落后于其普通法亲属和欧洲邻国，因为它允许以过失标准来确定责任，该标准将医生与一批医学意见的做法相符视为其已履行职责的确凿证据。本文警告说，在其他普通法管辖区，以所谓“理性患者”的形式出现了对患者做出明智决定权利的进一步威胁，其抽象性质意味着，在护理标准和因果关系问题中引入这一概念会造成证据空白，而这往往由医学专家的证据来填补，这样一来，即使医生未能披露其面前的患者为做出治疗决定所需了解的信息，医生也可能再次免于承担责任。得出的结论是，只有在护理标准基于每个患者的需求而非一批医生的意见时，只有在关注点放在实际患者而非假设的“理性患者”时，患者的知情权才能得到妥善保护。
