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Theses

Le consentement et responsabilité médicale

Abstract : According to Ana Marques « the true consent is the guarantee of the participation to the creation of a social cohesion. » The right relies on the Ethic, agrees with the Ethic and comes in various forms in a conditional way. This resarch aims at showing the evolutions relating to the doctor-patient relationship, viewing the consent, a concept that makes the link in this remarkable symposium. The jurist can therefore see the construction as he reads the texts and the jurisprudence. The importance of the consent takes part in the transformation of the doctor’s social position, within the social space and the doctor-patient-state relationship. From a remakable symposium emerges a new triptych. What is at stake here is that the collective and individual visions of the consent are built as opposites. Indeed, the health democracy is a rhetoric : we cannot talk about it but under concrete devices. Despite the confrontation between fundamental rights and security (especially health security), there are two opposite movements. Referring to the patient, taken in his individuality, his fundamental rights prevail but confronted to the community, this latter prevails. How can the dispute around the question of the patient's consent find a balance between these two sides ? The legislator ventures to intervene in a scientific field which is fallible because uncertain. Between what is implicit, explicit, assumed, asserted, possible or not, it is not easy to legislate and compensate a prejudice endured by a patient, user of the health system. This is where the relations between the administration, the doctors and the experts play a part via some tools : recommendations are diverted by the administration on power struggles, transforming what is legitimate for everyone. How do the legislator and the judge arbitrate and carry out an arbitrage operation in this purpose ? At the end, can the patient negociate the decisions concerning his health ? Is he in a position of compromise and mutual action ? Or does he manage to force his will in other spheres than as regards the end of life ? Isn’t the thread in the evolution of the principle of consent the respect of the dignity of a human being, the information of the consequences of the medical procedure ?
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Ambre Laplaud. Le consentement et responsabilité médicale. Droit. Université de Limoges, 2019. Français. ⟨NNT : 2019LIMO0041⟩. ⟨tel-02474356⟩

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