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又來到「長者法網智多聲」的時間了，這一節我們會跟大家說一下，在醫療程序中，醫生要怎樣徵求病人的同意，病人又是否可以拒絕治療。
醫生在醫治病人或展開醫療程序之前，要先得到病人的同意。香港醫務委員會制訂了《香港註冊醫生專業守則》，裡面解釋了甚麼是「徵求同意」。
守則提到，醫生要視乎治療的嚴重程度來徵求病人同意，例如最輕微的治療，可以根據病人看醫生時的表現，理解他是否同意接受治療；而涉及重大手術、入侵性程序或高風險的治療，就必須得到病人清晰而且明確的同意。更重要的手術，就更加要以書面方式表達同意。
那是否只要病人說好就是同意呢？不是的。守則寫明，醫生要向病人正確解釋建議治療的性質、成效和風險，並且為病人提供其他治療選擇。病人要正確地理解治療的性質和影響，然後自願表示同意。如果醫生給予的意見不全面，或病人和家屬聽完醫生解釋之後，沒有足夠合理的時間考慮就要做決定，那麼即使病人同意，都會變成無效。
當然，病人要有能力理解醫生提供的資料，以及有能力做決定，才可以在知情之下同意。如果病人是精神上無行為能力的，例如他患有精神病、痴呆或弱智，就可能要由監護人代為同意。
一旦病人沒有清晰表示同意，或沒有完全同意在治療過程中，讓醫生接觸他的身體，任何涉及接觸病人身體的治療或療程，都可以被視為侵權或襲擊的表面證據。即使病人同意接受治療，但如果他獲得的建議不夠全面或不符合要求，他都可以控告醫生侵權，要求賠償。
除了同意之外，病人亦有權拒絕治療。任何拒絕治療的指示，必須要清晰而明確，而且病人是自願作出這個決定。其中一種拒絕治療的方式，就是預設醫療指示了，如果想知道更多，可以到長者社區法網看看。
無論病人同意或是拒絕接受治療，如果醫生在治療期間疏忽犯錯，導致病人受傷害，他就要因為疏忽而負上法律責任。長者社區法網亦有詳細介紹甚麼是醫療疏忽。另外，受害的病人亦可以向醫務委員會投訴，醫委會可以展開調查和聆訊，並且判罰專業失當的註冊醫生。不過，醫委會不可以賠償給受害病人，所以，如果病人要求有金錢上的補償，就要向法院提出申索了。這一節就講到這裡，多謝大家收聽。
PrintTreatment performed without consent
Legal action in tort
Any medical treatment involving physical contact with a patient’s body is prima facie a tort of battery unless the patient has expressly consented (agreed) to that contact, or has at least implied his/her consent.
If the consent is given following incomplete or unsatisfactory advice, that consent could not be used as a defence agaist a claim. In such circumstances, the patient can sue the medical practitioner for damages in tort.
The time limit to take action in tort is 6 years from the date on which the cause of the action occured (Section 4(1) of the Limitation Ordinance, Cap. 347).
Negligent treatment
Irrespective of whether the patient has given consent to a treatment or not, if the medical practitioner has committed any negligent error in carrying out that treatment and has caused injury to the patient, the medical practitioner would be liable to the patient for negligence.
A medical practitioner owes a duty in tort to his patient: he must exercise reasonable care and skill in his/her treatment of the patient. Failure to do so would render the practitioner liable to the patient for damages for personal injury caused by the negligent treatment.
In order to claim damages, the injury must be shown to be the result of an error on the part of the medical practitioner and not the result of an inherent risk of the treatment, and that such an error would have avoided by a reasonably competent medical practitioner.
A negligent treatment is one which fails to attain the degree of skill and competence required of a reasonable practitioner. The basis of the test used to determine whether or not a practitioner has been negligent is the standard which would ordinarily be expected of a person trained in, exercising, and professing to have the special skills in question. It is not considered negligece if the practitioner exercises the ordinary or normal skill of a competent person exercising that particular art, even if the result of the treatment proves unsatisfactory. This test is called the “Bolam Test”, which is derived from the English case of Bolam v Friern HMC [1957].
The test is to be considered in the light of the practitioner’s specialisation and the post he holds. Inexperience is irrelevant to the required standard of care.
The treatment must be judged in the context of proper treatment at the time the negligence occured. The Court will not use a more current or advanced medical standard to judge a treatment that occurred in the past when the resources and equipment used were less advanced.
A practitioner who acts in conformity with an accepted current practice is not negligent merely because there is a body of opinion which would take a contrary view.
The practice relied on must be respectable, responsible and reasonable and has to have a logical basis.
The time limit to take action for personal injures is three years from the date on which the cause of action occurred, or three years from the date (if later) on which the plaintiff first discovered something was wrong (section 27 of the Limitation Ordinance, Cap. 347).
For more information, you may refer to another topic: Medical Negligence.
Lodging a complaint with the Medical Council
A patient can also lodge a complaint with the Medical Council of Hong Kong, which is responsible for registration and the professional discipline of medical practitioners. The Medical Council of Hong Kong was established under the Medical Registration Ordinance, Chapters 161, Laws of Hong Kong (“MRO”),
There in no time limit for making complaints.
The Council will in appropriate cases carry out an investigation and/or hold public hearings.
Under section 21(1) of the MRO, the Council is empowered to discipline a registered medical practitioner who has commited an offence that is subject to discipline.
If a practitioner is found guilty of a disciplinary offence, he or she will be reprimanded or given a public warning by the Council. In serious cases, his or her name may be removed from the General Register.
However, the Council can not grant damages to an aggrieved patient. The patient has to take legal action and sue for damages in Court.