刑法の観点からみた医療行為の代理承諾とその許容可能性 ー 日本の議論を参考に ー

Patient's consent is required for medical action on the patient's body. In other words, what is the disease, surgery is required and don't have access to any patient to make a decision to hear his doctor's explanation of the so-called ‘Informed Consent’ should be made. The required consent of the patient treatment procedure here for consent for patients with the ability should be made by you. But the real health care at the scene is minor or severe the patient's consent do not have the ability, including a mentally handicapped person, if not fewer. As such, patient consent for the act of medical treatment capability can not obtain patient consent if not. However, in the spot of the real medical care, a patient is a pupil and is the person who suffered a severe mental disorder and there are a lot of at all scenes to be the person who does not have ability for agreement. With the case which the patient does not have ability for agreement for the treatment act in this way, I cannot obtain a patient's consent. In addition, it is a patient, and the one which cannot afford to obtain consent before it is usual likewise in the scene where it is necessary to urgently put an operation to save the life of the patient who has been carried in an unconscious state. In this case should I deny the justification of the treatment act for the reason of not being able to obtain consent of the patient who is one of the justification requirements of insulting it of the medicine such a conclusion will too lack in validity. Should the aggression of the specialist to the patient who does not have ability for agreement not accept justification in the range of uniformity A problem is theory constitution to lead justification of insulting it of the specialist of this case. About the aggression of the normal medicine, an agreement of a patient is required by a thought to respect the self-decision right of the patient, but a patient cannot fill up in the justification requirements of the aggression of the medicine without an agreement of a patient being provided with the case which does not possess the agreement ability for the treatment act. Therefore it is necessary to consider the justification of the treatment act in the scene where an agreement of a patient is not provided some other time. In the spot of the medical care treatment act seems to be performed with the approval of a family or the relatives of the patient when the patient is the person who does not have ability for agreement for the treatment act. It is a point whether is the thing which the agreement by others has any significance on leading justification of insulting it of the medicine that what you must examine here does not obtain a patient's consent. Like an agreement of a patient is it the thing which can arrest you as one of the justification requirements of insulting it of the medicine that can correspond to the constitution requirements of the charge of inflicting bodily injury from such a critical mind. I want to add consideration about the substitute consent for the treatment act in this paper.