- 學位論文
論未成年人醫療自主決定能力-以病人自主權利法為中心
A Research of Minor's Independent Medical Decision-making Capability—Focusing on the Patient Right to Autonomy Act
摘要
生命應該要主動去扮演角色，而不是等著被命運分配，所以每個人都有追求自我健康和醫療的權利，成年人的醫療自主是追求人權、醫療及身體自主權的自我實現，未成年人的醫療自主能力亦應被等同視之。病人自主權利法」（以下統稱「病主法」）作為醫療特別法之一部，涉及民事、刑事規範，涵括層面有關未成年人醫療自主決定能力，究應以倫理上、心理上之決定能力為認定基準，充分保障病人自主，亦或遵循法律上之規範，以年齡為界限，容許法定代理人介入式的代理同意，剝奪未成年人的自主決定能力，為近年各界觸及討論之議題。 衡諸各國以病人為主體的獨立法規，或以其為中心之醫療規範，針對未成年人的醫療自主決定能力，奉行不成文法的英美國家多以未成年人的心智成熟能力著墨，給予充分的自主空間，並在父母及監護人代理權上，國家藉由法律手段保護未成年人的最佳利益，反觀我國對於未成年人之醫療自主決定能力，無法突破華人傳統的父權觀念，墨守成文法框架的法定年齡形同約束未成年人醫療自主的鳥籠，承受身體病痛的未成年人幾無話語權，決定，或不決定，誰的選擇和自主能力？基此，本文闡析各國有關「病主法」、「病人自主權」法規之特質，探討專以「病主法」為中心的法律觀點，針對我國現行法規內容，並借鏡英美各國相關立法及案例之探討，提出當前我國未成年人醫療自主決定能力面臨的困境及具體建議，以供各界研參，期藉抛磚引玉，試尋修法建議和未成年人自主參與醫療決策程度之評估方式，保障未成年人之最佳利益，有效解決未成年人醫療自主決定能力的窒礙問題。
並列摘要
Life should take the initiative to play a role, rather than waiting to be assigned by fate, so everyone has the right to pursue their own health and medical care. The medical autonomy of adults is the self-realization of pursuing human rights, medical care and physical autonomy. Minors have the right to pursue their own health and medical care. The medical autonomy of patients should also be treated equally. The "Patient Autonomy Rights Act" (hereinafter collectively referred to as the "Patient Act"), as a part of the special medical law, involves civil and criminal regulations, including the ability of minors to make independent medical decisions. It should be based on ethical and psychological considerations. Decision-making ability should be used as the criterion to fully protect the patient's autonomy, or it should follow legal norms and use age as the limit to allow international consent by legal representatives and deprive minors of their independent decision-making ability. This has been an issue discussed by various circles in recent years. Taking into account the independent laws and regulations of various countries that are patient-centered, or the medical standards centered on them, with regard to the Minor's Independent Medical Decision Making Capability, the British and American countries that pursue unwritten laws mostly focus on the mental maturity of minors and provide sufficient support. independent space, and regarding the agency rights of parents and guardians, the state uses legal means to protect the best interests of minors. On the other hand, China cannot break through the traditional Chinese patriarchal concept and stick to the statutory legal framework regarding the Minor's Independent Medical Decision Making Capability. The legal age is like a birdcage that restricts the medical autonomy of minors. Minors who suffer from physical pain have almost no right to speak. Who has the choice and autonomy to decide, or not to decide?Based on this, this article analyzes the characteristics of various countries' laws and regulations regarding "patient owner's law" and "patient autonomy", explores the legal perspectives centered on "patient owner's law", focuses on the content of China's current laws and regulations, and draws lessons from relevant legislation and regulations in the United Kingdom and the United States. The discussion of the case puts forward the current dilemmas and specific suggestions faced by minors in our country's ability to make independent medical decisions for reference by all walks of life. It is hoped that this article will provide suggestions for amending the law and ways to evaluate the degree of independent participation of Minor's Independent Medical Decision Making Capability to ensure that The best interests of minors and effectively solve the problem of obstacles to minors’ ability to make independent medical decisions.