【Discussion】Criminal Law Evaluation of Arbitrary Medical Behavior

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【Abstract】With the enhancement of patients' awareness of self-determination, arbitrary medical behavior has attracted more and more attention, but there is still a great deal of controversy in Germany, Japan and China at the legislative, judicial and theoretical levels on whether the behavior is criminalized. Among them, there is no special legislation in the mainland, and in practice, doctors are often pursued for civil tort liability in a blanket manner, which can theoretically be divided into the theory of innocence, the theory of full guilt and the theory of partial guilt. Based on the consideration of protecting patients' right to self-determination, arbitrary medical acts that only infringe on patients' right to informed consent should be subject to civil laws, while arbitrary medical acts that infringe on patients' right to informed consent and their right to body or life at the same time may establish a crime of negligence.

【Keywords】arbitrary medical treatment; Informed consent; partial criminalization; Medical negligence

I. Formulation of the problem

With the development of the human rights movement and the increased awareness of civil rights, the doctor-patient relationship has undergone a shift from doctor-centered "paternalism" to patient-centered "individualism". Specifically, the patient's consciousness of self-determination is gradually awakened, the contradiction between doctors and patients is gradually sharpened, and the factors of social instability are gradually increasing. How to resolve the conflict between doctors and patients through the law has become an important issue for maintaining social order.

The patient's right to self-determination is reflected in the medical field as the patient's right to informed consent. From Xiao Zhijun's visa refusal in 2007, to the fall of a pregnant woman from a building in Yulin in 2017, to the death of a 19-year-old pregnant woman in Haikou in 2019, this has triggered a heated discussion on patients' right to informed consent, and arbitrary medical behaviors characterized by the lack of informed consent have also become a hot topic of discussion. Arbitrary medical acts are a small branch of medical criminal law, and in theory, there is still room for discussion on whether it is a criminal offense and what the conditions for criminal criminalization are. Therefore, the discussion on the evaluation of criminal law of arbitrary medical behavior is conducive to enriching the basic theory of medical criminal law, filling the gap in the regulation of arbitrary medical behavior in criminal justice practice, and further protecting the rights and freedoms of citizens.

2. Definition of arbitrary medical conduct

Arbitrary medical behavior is first and foremost a medical behavior. It is generally accepted that there are four elements for a legitimate medical act: the medical purpose of treating the patient, the medical suitability, the medical legitimacy, and the patient's valid consent. The arbitrariness of arbitrary medical acts is reflected in the lack of effective consent of patients, which can be divided into three situations: first, there is no need to obtain the patient's consent, second, the patient's consent cannot be obtained, and third, the patient's consent should be obtained but the patient's consent is not obtained. In fact, corresponding to this classification, arbitrary medical acts are also divided into broad and narrow senses, the broad concept includes these three situations at the same time, and the narrow concept only corresponds to the third situation, as follows:

The first situation corresponds to compulsory medical treatment, that is, medical treatment of patients with mental illness and infectious diseases for the consideration of the overall public health interests of society. The Criminal Procedure Law of the People's Republic of China stipulates compulsory treatment measures for mentally ill persons who have been identified as not criminally responsible through legal procedures, the Law on the Prevention and Treatment of Infectious Diseases stipulates compulsory isolation and treatment measures for patients with Class A infectious diseases who refuse to receive treatment in isolation or leave isolation without authorization before the quarantine period has expired, and the Anti-Narcotics Law stipulates compulsory isolation and treatment measures for persons addicted to drugs. Since the act of compulsory treatment is regulated by a special law, the requirements for treatment methods and so on can refer to the relevant laws and regulations, so it is a lawful act. The second scenario corresponds to medical emergencies, i.e., medical acts performed without the consent of a patient who is in imminent and present danger for the purpose of saving the patient's life or maintaining vital health. In this regard, its legitimacy can be demonstrated through the theory of presumptive consent and emergency avoidance. The third circumstance corresponds to arbitrary medical acts in the narrow sense, that is, medical acts carried out without the patient's informed consent without the exclusion of the first two circumstances, in which case "not only the formal lack of the patient's informed consent, but also the necessity and possibility of obtaining the patient's informed consent". This is the focus of this article.

It should be noted that based on the result of the injury, it can be divided into arbitrary medical acts that only harm the patient's will and arbitrary medical acts that cause damage to the human body. Since the behavior evaluated by the criminal law needs to be seriously harmful to society, only arbitrary medical acts that infringe on the patient's right to health or life are the object of discussion in this article. For arbitrary medical acts that only undermine the patient's right to self-determination, civil remedies can be used to protect the patient's rights and interests.

To sum up, the arbitrary medical acts evaluated by the criminal law are: in addition to compulsory treatment and emergency medical treatment, under the condition that it is necessary and possible to obtain the patient's informed consent but without the patient's effective consent, the doctor arbitrarily carries out the medical act that infringes on the patient's right to health or life, but is in line with the medical purpose, and has medical adaptability and medical legitimacy.

3. The controversy over the criminalization of arbitrary medical acts

(1) Arbitrary medical care from the perspective of Germany and Japan

Arbitrary medical behavior is mainly discussed under the civil law system, so this paper mainly analyzes the legislative, judicial, and theoretical attitudes of Germany and Japan towards arbitrary medical behavior.

First, from a legislative point of view, there are two main ways to regulate arbitrary medical acts: one is to set up special criminal law crimes, and the other is to pursue accountability through existing crimes. Germany was the first to create the idea of a separate crime, with the current penal code "termination of pregnancy" being a specific crime in the medical field, while the rest of the medical acts subject to criminal law are punished as negligent injury or manslaughter. Japan does not have specific legislation on arbitrary medical practices.

Second, Germany's judicial practice has a stricter attitude towards arbitrary medical acts, that is, as long as the medical acts lack the valid consent of the patient and cause physical harm to the patient, the crime of injury is established. In 1894, the "bone cancer amputation case" heard by the Germany Imperial Court was the first to criminalize arbitrary medical acts, and the subsequent "hysterectomy" verdict coincided with it. The common denominator of the two cases is that without the consent of the patient or his guardian, the doctor carried out the treatment without authorization, causing physical or life damage to the patient, and finally the court held that the constitutive elements of the crime of injury were met. Japan has a relatively relaxed attitude, generally regulating according to civil law, and a few cases are prosecuted according to criminal law. For example, in the "mastectomy case", the patient was diagnosed with breast cancer in the right breast and agreed to have the right breast removed, but the doctor removed both breasts without authorization, and finally the court found that the removal of the left breast was illegal. Another example is the case of Jehovah's Witnesses Refusing Blood Transfusion, in which the patient explicitly refused to have a blood transfusion because of his religious beliefs, but the doctor gave him a blood transfusion during the operation, and the patient filed a lawsuit afterwards, and the court held that the patient's right to decide on the refusal of blood transfusion should be protected as part of the right of personality.

Third, Germany theorists believe that "the act of treatment is considered a physical injury, but it is legalized with the consent of the patient". At the same time, most scholars believe that although arbitrary medical treatment meets the constitutive requirements, it does not necessarily constitute the crime of injury. In this regard, it can also be subdivided into three views: first, the result theory, that is, based on the perspective of the valuelessness of the result, it is asserted that arbitrary medical treatment that causes substantial damage to the patient constitutes the crime of injury; Second, the theory of behavior, that is, based on the perspective of the valuelessness of behavior, advocates that arbitrary medical treatment has medical adaptability and medical legitimacy, that is, legitimacy; Third, the doctrine of illegal informed consent, that is, advocating arbitrary medical treatment that causes more than minor injuries is established as the crime of injury. In addition, some scholars have argued that the theory of hypothetical promise, that is, arbitrary medical treatment is not illegal when the patient would have consented when he or she was informed that he or she should have been given. Japan presents two opposing views: first, the doctrine of innocence, which advocates that arbitrary medical treatment only has the civil illegality of infringing on patients' right to self-determination; Second, the doctrine of guilt asserts that arbitrary medical treatment constitutes the crime of injury even if it is medically suitable.

(2) Arbitrary medical treatment from the perspective of the mainland

First, the mainland does not have special legislation on arbitrary medical treatment, but the Criminal Code of the Macau S.A.R. provides for arbitrary medical treatment in the chapter "Crimes against Personal Freedom", while in Taiwan such acts may be recognized as compulsory crimes.

Second, in judicial practice, the mainland often considers arbitrary medical acts to be civil illegal, and very few cases are subject to criminal law. In Taiwan, there is the possibility of pursuing criminal liability, such as in the "hymen laceration case", the procuratorate prosecuted the crime of negligent injury, with the intention of pursuing the criminal responsibility of the doctor. It should be noted that some scholars believe that the "case of removing the uterus of a mentally handicapped girl" is a judgment that imposes criminal punishment on arbitrary medical acts, but in fact it is not. In this case, the Nantong Children's Welfare Institute removed the uteruses of two mentally handicapped girls for the convenience of their own work, and the court finally found guilty of intentional injury. Obviously, the welfare institution's actions were only for the convenience of its own management and did not have the purpose of treating the victims, and it was not a medical act from the beginning, let alone an arbitrary medical act, and in essence it violated the right to informed consent and the right to body of the two young girls, which was an act of intentional harm.

Third, the views of mainland theorists on whether arbitrary medical treatment is criminalized can be divided into three theories:

First, the doctrine of innocence, advocates that only civil liability or administrative liability should be pursued for arbitrary medical acts. The reasons are: First, arbitrary medical acts have legitimate medical purposes, medical adaptability and medical legitimacy, and even if the patient's right to informed consent is violated, it is essentially different from the harmful acts in criminal law. Second, the act only violated the patient's right to make his own decision, and there was no negligence or adverse consequences, and based on the modesty of the criminal law, he should not be investigated for criminal responsibility. The third is to blindly support the criminalization of arbitrary medical acts and overemphasize the interests of patients, which will cause the negative attribution of the doctor, damage the inner feelings and enthusiasm of the doctor, and ultimately damage the interests of the patient.

However, there are certain defects in this theory: First, it pays attention to the medical purpose, medical adaptability, and medical legitimacy of arbitrary medical acts, but ignores that these characteristics are the basis for arbitrary medical acts, and it is not appropriate to use these characteristics to criminalize arbitrary medical acts, otherwise even arbitrary medical acts that cause major damage to the legal interests of patients' lives will not be regulated by the criminal law, which will inevitably restrict the role of the criminal law, make the rights and interests of patients lack criminal remedies, and ultimately harm the interests of patients. Second, the theory recognizes the modesty of the criminal law, and in essence, admits from the side that as long as there is negligence and adverse consequences in arbitrary medical acts, criminal responsibility should be pursued. Third, it is necessary to recognize how to balance the interests of doctors and patients, but if arbitrary medical acts that infringe on the vital interests of patients are not regulated by the criminal law, it is obviously also harmful to the interests of patients. Fourth, scholars who support this theory confuse the concepts of arbitrary medical acts and emergency medical acts, but the two are essentially different, and it is naturally inappropriate to support the view that arbitrary medical acts are not guilty on this basis.

Second, the doctrine of total criminalization advocates that arbitrary medical treatment constitutes a crime. The reasons are: First, the justification of medical behavior is based on the patient's informed consent, and the doctor should fully inform the patient of the treatment method and possible risks before performing the medical act, and the patient should decide whether to perform the method. Therefore, there is no basis for justification for arbitrary medical treatment without the patient's informed consent, and the perpetrator should be investigated for criminal responsibility. Second, the right to self-determination, as the highest right, is the core of human freedom, and arbitrary medical behavior without the informed consent of patients deprives patients of the essence of life.

However, there are also certain flaws in this theory: First, in the case of arbitrary medical acts to achieve therapeutic effects, only the patient's right to informed consent is infringed, and the serious social harm that the behavior evaluated by the criminal law needs to achieve has not yet been reached, and under the requirements of the modesty of the criminal law, it is not necessary to seek the protection of the criminal law. Second, the theory of blanket criminalization is too arbitrary, and a one-size-fits-all approach will only cause an imbalance in the interests of doctors and patients, so that doctors will restrict their medical practices for fear of criminal liability, which will ultimately harm the interests of patients.

Third, the theory of partial criminalization can also be subdivided into two propositions: one is to take the civil law system as the principle and the criminal law system as the exception, that is, if the patient's right to make independent decisions is only infringed, the moral damage compensation can be obtained through civil litigation, and the injury result caused by an arbitrary medical act that does not have medical adaptability and medical justification may constitute the crime of intentional injury, and the crime of causing serious injury or death by negligence may constitute the crime of causing serious injury or death by negligence. Second, if the patient's right to self-determination is only violated, it does not constitute a crime, and if the patient's right to self-determination and the right to body or life are violated at the same time, if there is no illegal obstruction cause, the patient shall bear criminal responsibility. However, the first proposition holds that the conditions for the criminalization of arbitrary medical acts are: the formal lack of medical fitness and medical legitimacy, the substantive lack of the patient's informed consent, the objective result of harm, and the subjective intention or negligence. This view ignores that medical adaptability and medical justification are the characteristics of arbitrary medical behavior, rather than the justification for its guilt. It is also debatable whether an arbitrary medical act can be established as an intentional crime. In contrast, the second claim is more plausible.

In summary, Germany as a whole has a relatively strict attitude towards arbitrary medical behavior, and tends to protect patients' right to informed consent, physical rights, life rights and other major legal interests. In contrast, Japan does not have special legislation, and in practice, legal liability for arbitrary medical acts is mainly pursued by civil means. The situation on the mainland is similar to that of Germany and Japan. Despite the differences in legislative, judicial and theoretical opinions, in general, countries are trying to balance the interests of patients and doctors through legal means, and recognizing that civil means alone are no longer sufficient to meet practical needs, and have increasingly focused on protecting patients' right to informed consent through criminal law.

4. Resolution of criminal law evaluations of arbitrary medical acts

(1) Informed consent in the legal context

Arbitrary medical acts are typically characterized by the lack of informed consent of patients, so it is necessary to clarify the informed consent in the legal context in determining whether it is criminalized.

Informed consent was originally a norm of medical ethics, but it gradually attracted legal attention with the transformation of the doctor-patient relationship. In the era of "paternalism" doctor-patient relationship with doctors as the core, doctors absolutely dominate medical activities because of their professional medical knowledge, and patients can only express acceptance and obedience, and patients' informed consent is impossible to talk about. With the development of medicine and the dissemination of knowledge, patients are more aware of their right to make decisions on matters involving their own lives, health and safety. The right to informed consent of patients has received legal attention, dating back to the Skorlendorff case in 1914 and in 1957 in the case of Schaugol v. Board of Trustees of Stanford University, and has been continuously developed since then.

Informed consent has also undergone a long development process in the mainland. Article 33 of the Regulations on the Administration of Medical Institutions, promulgated in 1994, stipulates that "when medical institutions perform surgery, special examinations or special treatments, they must obtain the consent of the patient, and shall obtain the consent and signature of the patient's family or related persons". Article 26 of the Medical Practitioners Act, promulgated in 1998, first set out the obligation of doctors to explain, and the subsequent Regulations on the Handling of Medical Malpractice were more detailed and specific. In addition, the tort liability section of the Civil Code also provides for informed consent in the medical field. It can be said that the mainland attaches great importance to the protection of patients' right to self-determination in the fields of administrative law and civil law, so it is reasonable to use criminal law to protect this right based on the principle of unity of legal order. Specifically, the legal order between multiple legal fields does not contradict each other, and as far as medical acts are concerned, administrative law and civil law focus on protecting the patient's informed consent and physical rights, so as long as the conditions for the conduct evaluated by the criminal law are met, the criminal law can also play a role in protecting the patient's informed consent.

As far as the specific connotation of the right to informed consent is concerned, it can be divided into the right to know and the right to consent, the former is the patient's right to obtain relevant treatment information through the doctor's full notification in advance, and the latter is the patient's right to decide whether he agrees to the treatment and what means of treatment he accepts after analyzing the treatment information. Its purpose is to protect the basic human rights of patients, to safeguard the human dignity of patients, and to fully promote the value of respect for autonomy in the medical field. After all, whatever the outcome of the medical act, it will be borne by the patient himself, who should naturally be involved. However, the subject of exercising the patient's right to informed consent is usually the patient himself/herself, but in judicial practice, if the patient does not have the corresponding capacity, his/her legal representative will exercise it on his/her behalf.

It can be seen that the law attaches great importance to the protection of patients' right to informed consent, so for criminal law, it is the last means of guarantee for various departmental laws, and there is still room for criminal law to play a role in protecting patients' right to informed consent if certain conditions are met.

(2) The promotion of the doctrine of partial criminalization

This article argues that only arbitrary medical acts that infringe on the patient's right to body or life can be criminalized, for the following reasons:

First, the pursuit of civil liability and the pursuit of criminal liability are not opposites, but there is competition, and an act may be both a civil tort and a criminal act. Depending on whether the arbitrary medical act has caused serious harm to society, different legal means are adopted to meet the requirements of remedying the damaged legal interests and the requirements of the criminal law's moderation. Second, the evaluation of arbitrary medical acts that cause serious consequences through criminal law can not only protect the legitimate interests of patients, but also urge doctors to fulfill relevant obligations, protect doctors from medical disputes, and further reduce doctor-patient conflicts after balancing the interests of the two. Third, the awakening of patients' awareness of independent decision-making, the increasing attention of various countries to the protection of patients' right to informed consent, and the inadequacy of civil law to evaluate all arbitrary medical behaviors all indicate that it is inevitable to include some arbitrary medical behaviors in the evaluation of criminal law. Fourth, "the best interests of the patient are the health interests of the patient that are independently determined and controlled by the patient based on his own will", and the refusal of treatment and arbitrary treatment against the patient's will if the patient's wishes are not satisfied, and the doctor should be investigated for criminal responsibility.

(3) There is room for establishing negligence in arbitrary medical conduct

Arbitrary medical treatment that violates a patient's right to body or life is not only criminalized, but can only be established as a crime of negligence. Here's why:

First, arbitrary medical treatment has the legitimate medical purpose of saving patients' lives and maintaining their physical health, and at the same time, there are certain risks and uncertainties in medical activities, and doctors cannot hope or allow the results to occur knowing that their medical actions will cause consequences that are harmful to society. If there is an act of intentional harm to the rights and interests of a patient, it does not fall into the category of arbitrary medical behavior because it does not have a legitimate medical purpose, but is only an ordinary intentional injury, such as the above-mentioned "removal of the uterus of a mentally handicapped girl". There is a view that "arbitrary medical acts, as legitimate purpose acts, must be the result of subjective decision-making, which also means that it is an intentional act", but subjective decision-making is not equal to subjective intention, and this proposition is not convincing.

Second, arbitrary medical treatment is characterized by the lack of informed consent of the patient, but to ensure the patient's right to informed consent, the doctor needs to fulfill the obligation to inform and fully explain, and if it is not performed, it may cause misunderstanding by the patient or the doctor, thus delaying the treatment. At the same time, it is also necessary to determine whether "the lack of reasonable communication between doctors and patients makes the medical treatment behavior fail to take into account the specific patient's condition, constitution, and intentions". Therefore, if a doctor neglects to perform his duty of care in a medical act, and thus causes serious harm to the patient, the crime of negligence may be established. As for what kind of negligence crime is established, some scholars advocate that it is "three crimes: negligence causing serious injury, negligence causing death, and medical malpractice".

In summary, there is still room for criminal law to play a role in protecting patients' right to informed consent if certain conditions are met. However, only an arbitrary medical act that simultaneously infringes on the patient's right to body or life can be found guilty of a crime, and only a crime of negligence can be established.

epilogue

Arbitrary medical acts in the broad sense include compulsory treatment, emergency medical treatment, and arbitrary medical acts in the narrow sense, and this article only discusses the last category of criminal law evaluation issues. Germany, Japan, and China all have different views on arbitrary medical practices at the legislative, judicial, and theoretical levels, but in general they are increasingly emphasizing the right of patients to make their own decisions. This paper argues that arbitrary medical acts that only infringe on patients' right to informed consent are subject to civil law, and that arbitrary medical acts that infringe on patients' right to informed consent and their right to body or life at the same time may establish the crime of negligence. Although arbitrary medical behavior is a small branch of medical criminal law, there are still many issues that have not been clarified, such as whether there are illegal obstruction reasons for arbitrary medical behavior, and whether the victim consent theory can play a role in the field of arbitrary medical behavior, which need to be further explored.

bibliography

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Producer: Zhang Yongjiang

Author: Feng Xueying, 2024 master's degree student in criminal law, Faculty of Law, Xiangtan University

Editor: Feng Xueying

Editor-in-charge: Peng Xiaodi

Review: Zhang Yongjiang

Hunan Provincial Criminal Rule of Law Research Association

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