Release date: 2017-02-09 The director of the psychiatric department of Guiyang Hospital of Guiyang, with dozens of patients collectively “running away†the news after continuous fermentation, has received at least two days in the past, including Zhongqing Daily, Phoenix News, Yan News, Beijing News, Southern Weekend, South. Metropolitan newspaper, Caixin.com and other media legal consultations, because the original public article article was a few hours after the incident, some details are not enough, and some legal issues have not been thoroughly demonstrated, in order to avoid ambiguity, special questions and answers form a unified writing as follows: Question 1: Some patients' guardians only received a telephone call for transfer, and a few patients received a phone call only one hour before the transfer. Does this behavior violate the patient's informed consent? A: China's "General Principles of Civil Law" does not stipulate that the meaning of "meaning expression" is limited to written, oral, telephone, WeChat, etc. is also a legal way of expressing meaning, and Article 55 of the "Medical Damage Liability" section of the Tort Liability Law It is only required that the doctor should obtain the written consent of the patient in the three cases of surgery, special examination and special treatment. The notification in other cases is not limited to written. Transferring is obviously not one of the three situations of performing surgery, special examination, or special treatment, so the telephone notice is legal. Of course, if the guardian explicitly refuses to transfer the hospital and is transferred to the hospital when it is notified by phone, it violates the informed consent of the transfer. For those who have not been notified by telephone or other means, if the ward guardian approves the transfer, the transfer is also legal and does not infringe the patient's informed consent. As for the one hour before the transfer, the guardian will be notified by phone. Is it suspected that the "intimidation and the danger of taking the person" as stipulated in Article 58 of the General Principles of Civil Law invalidate the notice? I don't think so, because in this case, the guardian's will is still free, he can still choose between "remaining hospital" or "transferring to his hospital." As for the family members of some patients, if they stay in the original hospital and there is no doctor to treat them and they have to follow the transfer, they have nothing to do with the doctor who has transferred the hospital. Because any hospital loses its healing ability after a major doctor transfers, its management is problematic. Question 2: What procedures are required for the patient to be transferred to the hospital? Is there any violation of this incident in the transfer? A: First of all, transfer is the natural right of the patient. The patient or his guardian proposes or agrees to transfer the hospital. In law, the patient should be deemed to have a medical service contract. The doctor and the hospital should respect it unless the patient's condition is urgent or dangerous. Not suitable for transfer to the hospital. However, even if the condition is complicated and medically unsuitable for transfer, the doctor should fully inform the patient of the transfer request, and obtain the consent of the patient or guardian and stay in the hospital for further treatment. In this incident, there is no evidence that the patient involved is not medically suitable for transfer. Second, about the transfer procedure. After the patient or guardian proposes to transfer to the hospital, the remaining main procedures should be completed by the doctor or the hospital to assist the patient. This is legally a contractual obligation or legal obligation of the hospital after the contract is terminated, including the doctor continuing to complete the unfinished medical record. Write transfer certificate, financial settlement, etc., and the patient's obligations include inventory of items, settlement of hospitalization fees, etc. In this case, as long as the guardian agreed to transfer, there is no violation of the doctor. Because the doctor's written unfinished medical record, transfer certificate and other contractual obligations or statutory obligations, as long as the patient has been discharged from the hospital within the prescribed legal time limit, can continue to complete. Q3. In addition to the right to informed consent, in large-scale transfer, is it still suspected of infringing on other interests of patients? A: The most important of the other interests is the patient's right to physical health. Whether it violates the patient's right to physical health or causes medical damage is a professional problem that requires professional knowledge to judge. However, from the existing evidence, the patients are all mentally ill, non-transfer taboo, and there are hospital vehicles in the process of transfer, accompanied by medical care, so far no family members have complained about medical damage, so there is no evidence to suggest damage. The patient's right to physical health. And from the relevant information disclosed by the media, the conditions of the second hospital are better. In the case that the doctors are also in place, the transfer may be more conducive to the patient's right to physical health. Q4. Does the doctor rush to the second hospital without a normal dismissal procedure, is it a violation of the relevant provisions of the Practitioner Law? A: This is the core issue of this incident. In fact, the abnormal departure of doctors in public hospitals has not only happened in Guiyang this time. As far as I can see and hear, it happens almost every day. It is only this time that Guiyang actually took away his patients, and he took the mental patients on a large scale. It is in line with all the news hotspots of “Flying over the madhouse†and is known throughout the country. I don't think that the relevant doctors have not resigned to the first hospital beforehand, and the way to resign is not necessarily limited to written. According to media reports, the written resignation letter was submitted on the third day of the New Year, but I believe that the previous oral negotiations have not known how many round trips. Why does the hospital disagree with his resignation? What weapons does the hospital have and what reasons prevent him from resigning normally? This problem has been discussed in the public article in front of me, "The director of the department of Guiyang Sanjia Hospital, with the patient collectively fleeing, is not a big event." I believe that under the coordination of the local health planning committee, the doctor can quickly and normally resign from the first hospital. After signing the employment agreement with the second hospital, the doctor's practice registration location will be changed to The second hospital, as such, under the current legal framework, the doctor can justifiably practice in the second hospital. Q5. Does the doctor take a large number of patients from one hospital to another without any unfair competition? A: This issue has been discussed in the previous article. In addition, patient information or customer information or permission is recognized as a trade secret in the Anti-Unfair Competition Law, but patients with free will are not themselves defined as trade secrets because it is impossible for any hospital to free patients. The will to take secret measures, the patient's free will is not likely to be a secret of any hospital that is not known to outsiders, that is, patients with free will not meet the two major requirements of trade secrets: confidentiality, secrecy. After the doctor leaves, the patient is willing to follow the doctor to another hospital and should not be hindered by any law. Even if a non-compete agreement is signed between the doctor and the hospital, this agreement can only bind the doctor and cannot bind the patient. About the author: Liu Wei is a partner of Shanghai Maritime Law Firm and has studied medicine at Tongji Medical University and Shanghai Medical College of Fudan University. 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A Supplementary Legal Analysis of a Psychiatric Director in Guiyang Bringing a Collective "Runaway" Event