Consensus in medical treatment in the French and Saudi laws: التراضي في العلاج الطبي في القانون الفرنسي والسعودي

Abstract

Medical treatment is mutual consent between two parties, the doctor on the one hand, and the patient on the other, to conduct a therapeutic intervention, which is initially the main goal of this research. By adopting an analytical and descriptive methodology for legal texts, opinions of jurisprudence, and judicial jurisprudence, the physician is free, in principle, to select and contract with his patients. This is what the study aims to clarify. The physician has the right to consent to contracting with or rejecting a specific patient, regardless of the nature of the motive. A doctor, like other people, has complete freedom to practice his profession in the manner that he pleases. As he has the right to accept or reject the invitation for treatment, he is not obligated to answer the patient's request. A critical reading of these texts and a comprehensive look at the opinions reveal that the doctor's refusal of treatment could come as a result of professional reasons and/or personal reasons. Others add the cases of religious convictions and the inability resulting from his lack of specialization in treating the disease. However, considering the concept of social justice, the freedom to practice the medical profession is no longer an absolute freedom exercised in that traditional individual spirit that entitles those with free professions to practice it or refrain from practicing it as they please, which is what the researcher seeks to explain. Medicine in general is nothing but a social function in which the practitioner must seek the spirit of social solidarity. As a result of these social views, the physician must commit to performing them according to the best interests of society. The doctor is not entitled to refrain from helping or answering the call of a patient. On the other hand, the study aims to clarify that medical treatment requires the patient's consent as well. It was found that there was a difference of jurisprudence regarding this, but it does not prevent the doctor from making obligations towards the patient. While some jurists believe that the doctor or surgeon has the right to impose a medical decision whose necessity he assesses in the light of his conscience and experience, even against the will of the patient, others maintain that he cannot treat the patient without taking his free and enlightened consent. Still others see that the patient must be satisfied specifically in certain cases. In this sense, the doctor is allowed to tell white or open lies. The study concluded that the doctor must, at all stages, show the patient the feasibility of the required treatment and surgery and the extent of their success before each medical or surgical intervention. The result of the recognition of the patient’s right to maintain his physical sanctity must also work on the principle of the doctor’s obligation to provide the patient with this information and inquiries until the patient’s satisfaction comes enlightened or insightful despite the emergence of realistic problems related to obtaining the patient’s satisfaction The study generally recommends: 1- Enacting new laws that override the jurisprudential differences over consent, define its cases and arrange responsibility for it. 2- Assigning a substitute to the doctor to enlighten the patient and search for his consent in specific cases 3- Appraising the creative role of jurisprudence in the article of medical contracting and resolving the related problems.