标题: 病人自主、亲属父权与医师专业责任:论安宁缓和医疗条例之理论与实践
Patient Autonomy, Family Paternalism, and Doctor’s Responsibility in Medical Decisions Concerning End of Life: A Legal and Empirical Analysis of the Hospice-Palliative Care Act
作者: 张曼玲
Chang, Man-Ling
林欣柔
Lin, Shin-Rou
科技法律研究所
关键字: 安宁缓和医疗条例;维生医疗;病人自主;医师专业责任;无效医疗;The Hospice-Palliative Care Act;Life-Sustaining Treatment;Patient Autonomy;Doctor’s Responsibility;Medical Futility
公开日期: 2012
摘要: 安宁缓和医疗条例系我国有关病人依其自主权拒绝维生医疗最重要的法律规范,自2000年制定实施以来历经三次修正,均以撤除或终止已实施维生医疗之代理决定要件为修正重心,显示代理决定在临床上维生医疗之选择,具有重要地位。为了解实际上安宁缓和医疗条例之执行状况以及病人如何行使对维生医疗之选择权以探究立法者欲保障病人自主之目的是否达成,本文欲探讨以下问题:维生医疗议题在国际间之发展趋势以及台湾法制之回应为何?安宁缓和医疗条例所赋予病人之拒绝维生医疗权利、最近亲属之代理决定及医师决定,于临床上之实践情形为何?目前安宁缓和医疗条例之规范架构是否有可改进之处,以落实病人对维生医疗之拒绝权?
为回答上述问题,本文首先透过文献分析法整理比较法与我国法中对于维生医疗之评价与发展,再藉由半结构式访谈方法探访来自8间区域医院等级以上医院、共14位临床加护病房医师之意见。访谈发现:1.因医师、病人、家属对于死亡议题之忌讳,病人预立意愿书之比例不高,预立医疗代理人者亦少见;2.临床上病人自己表达对维生医疗之选择意愿者不多,多由亲属代为决定;代为决定之亲属未必是法律所规范之“配偶、子女、孙子女、父母全体”(旧法)或最近亲属一人(102年1月新修法),而以“家族一致共识”为原则;3.家族共识所形成之代理决定,未必以病人意愿之替代决定或病人之最大利益为准,代理决定人个人之情感、财务因素亦可能影响代理决定之形成;4.对于未预立意愿书、亦无亲属可为代理决定之病人,医师多因考量病人疾病之可治愈性、生活品质与维生医疗之负担,倾向不积极实施维生医疗;在102年1月修法后,法律虽允许医师得经照会安宁缓和医疗、依病人之最大利益代为决定,然因医师认为确定是否已无最近亲属不易,以及对撤除与不实施之伦理评价不同,对依此修正规定而撤除该末期病人之维生设施尚有疑虑;5.医师认为实施维生医疗仅系延长病人之死亡过程、无意义、为病人带来之负担大于利益、无法改善病人情况或成功率过低时,属于不适当之医疗;若病人或其亲属(大多数是亲属)要求实施不适当医疗,且沟通无效时,除有采限时治疗尝试方式外,医师多会依循病人亲属之决定实施;6.医疗专业判断与病人亲属要求实施不适当医疗之意见冲突情形并非罕见,医师多赞同透过健保之限制,减少不适当医疗之实施,但亦有主张应赋予医师拒绝遵照亲属代理决定之权利。
由访谈结果发现可知,安宁缓和医疗条例所欲达成保护病人权益之目的并未充分实现,本文建议,应将安宁缓和医疗条例之适用主体扩大,让病人不仅得拒绝藉由维生医疗之支持延长其死亡过程,也得拒绝倚靠维生医疗辅助维持生活品质低落之存活;并应明确建立代理决定之标准,让大多数由最近亲属产生之代理决定,需合乎病人之意愿或最大利益;对于安宁缓和医疗条例第七条第三项医师决定之规定,因与病人拒绝维生医疗权存有伦理冲突,且对于实务处理之效益不大,为维护法理之一致性,建议删除。此外,基于医学伦理中医师对病人负有维护其最大利益之义务,不论是对病人本人或其医疗代理人或最近亲属之决定,医师均有义务依病人最大利益随时提供意见与谘询,并以之作为提供或撤除维生医疗之准则,故若遇有代理决定不合乎病人权益之情事,应允许医师寻求伦理委员会或法院之介入;医疗专业应对晚近国际间无效医疗理论之发展,持续就无效医疗之定义及伦理意涵进行讨论,带领社会对于维生医疗之运用界线建立共识。
In Taiwan, terminally ill patients are entitled to refuse life-sustaining treatment after the Hospice-Palliative Care act enacted in 2000. By formulating the act, government hopes that terminally ill patient can achieve a "good death". After enacted, the Act has been amended for 3 times and mainly focused on lawfully withdrawing life-sustaining interventions by third parties.The purpose of this study is to examine how patients’ right to refuse life-sustaining treatment be implemented under the Hospice-Palliative Care Act. By literature review and qualitative research, the author would like to investigate the international development of end-of-life issues and the legal response of Taiwan, the exercise of patient’s right to refuse life-sustaining treatment in current clinical practice, and the needed improvement.
By conducting qualitative interviews with 14 intensive care unit physicians from 8 hospitals in Taiwan, the author found that patient’s wishes were rarely known for mostly being incompetent with no advance directives, thus it was mainly the patient’s family to make surrogate decision. Though the Act needs only one legal family surrogate to make decisions, if no consensus has been achieved among influential family members (not necessarily be qualified legal surrogate), the provision of life-sustaining treatment would not end. Since consensus among family members was the only rule for surrogate decision making process, health care provider might find inappropriate considerations, such as personal emotions and financial interests. According to the amendment of Hospice Palliative Care Act in 2013, health care provider could also make surrogate decisions based on patients’ best interest if no qualified family members could be find. Health care provider might consider whether the patient is curable, the quality of life and the burden of treatment is acceptable when making the judgment. For the reason that health care providers thought differently between “withdraw” and “withhold”, and interpreted the law conservatively, the result indicated that the new amendment would make little difference to current practice.
In some cases, health care providers might identify surrogate’s request for life sustaining treatment as medically inappropriate for prolonging process of dying, being pointless, bringing pain or ultra burdens, bring no improvement and minimum chance of success. Although the interventions might make the patient suffered or consume medical resources, due to legal, psychological, social, cultural, and economical considerations, if the conflicts couldn’t be solved through communication or temporary attempt, these interventions would often be provided. As a result, the implementing rate of life-sustaining treatment became so high. Many health care providers agree with BNHI’s restriction as a solution, others suggest that health care providers should have the right to deny inappropriate request from surrogates.
In order to protect patient’s right to refuse life sustaining treatment, the author found it necessary to broaden the scope of application of the Hospice-Palliative Care Act. Patients should be authorized to refuse life-sustaining treatment not only for prolonged dying process but also for unacceptable quality of life. It was also necessary to set implicit standard for durable power of attorney and surrogate to comply with when patient is incompetent. Patient’s wish should be the primary consideration, then his/her best interest. Though health care provider also could make surrogate decisions when patient was incompetent without any advance directive or qualified legal surrogate, the author found this new amendment might conflict the basis of the Hospice-Palliative Care Act, which is patient autonomy. Therefore, the amendment should be deleted. Based on professional integrity, the author also suggested health care providers to assist patient or their attorney and surrogate in decision-making by explaining medical considerations and providing recommendation, health care providers should also ask for second opinion whenever attorney or surrogate’s decision conflicts patient’s wish or best interest.
Although BNHI’s restriction for “futile” treatments did reduce inappropriate use of life-sustaining treatment, the implication of medical futility should not be confused with rationing. Under medical futility circumstances, the health care provider no longer have absolute duty to follow individual’s choice or even have the duty not to comply with the request if the treatment carry no benefit or benefit with ultra burden. The theory had been provided to deal with the conflicts between professional judgment and personal request on the basis of nonmaleficience and beneficence, not medical resource allocation. To clarify the differences, BNHI should limit inappropriate use of life-sustaining treatment by other rationing standards. The author also encouraged health care providers continue to discuss the definition and ethical implication of medical futility, to help general public recognize the limit of life-sustaining treatments.
URI: http://140.113.39.130/cdrfb3/record/nctu/#GT079938520
http://hdl.handle.net/11536/71519
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