专断医疗侵犯了病人的自主权,所以,基本上不受容许。依据医疗伦理原则,医师实施侵入性的医疗行为前,应尊重病人的自主意思,必须以病人的同意为前提。但是,某些例外的情况,如病人昏迷而不能自主决定或病人所作的决定不合常情而可能危及生命时,医师也许要采取专断医疗。这种情况下的专断医疗,在刑法上是否要加以责难,有讨论的必要。以耶和华见证人拒绝输血为例,医师在医疗过程中,如果为了挽救病人的生命,违反其意思而输血,刑法上不能评价为违法。因为,在“防御性医疗”当道的情况下,懂得自保的医师只要迎合病人的决定,既可以快速了结医疗案件,又可以免除法律争端,何乐而不为?唯念念不忘救人的善良医师,才可能作出违反病人意思的医疗决定,刑法不应苛责此类医师。 Discretionary medicine violates the patient’s autonomy, therefore, is largely unacceptable. According to the principles of medical ethics, physicians should respect the patients’ independent opinions before implementing intrusive medical practices, and must be premised on the consent of the patients. However, in some exceptional cases, physicians may want to resort to arbitrary medical treatment when the patient is unconscious and can not decide on his or her own initiative or when the decisions made by the patient are not routine and may be life-threatening. In this case, it is necessary to discuss whether the arbitrary medical care is punishable in criminal law. Take Jehovah’s Witness’s refusal to give blood transfusion for example. In the course of medical treatment, a doctor can not be assessed as unlawful if he transfuses his blood in violation of his or her intention to save the patient’s life. Because, in the case of “defensive medical treatment,” doctors who know how to protect themselves can cater to the patient’s decision quickly, can not only quickly settle the medical case, but also can avoid legal disputes, why not? Good physicians may make medical decisions that violate the meaning of the patients, and the criminal law should not be held responsible for such physicians.