In view of the frequent and emergent technological developments in equipment and machines for diagnosis, treatment, and the successive discoveries of biomedical research that may cause unusual damage to patients; and in regard to a growing public knowledge about the basic data related to many aspects of access to medical information, it was necessary to transfer the nature of the relationship between the doctor and his patient from absolute medical custody to the gradual partnership in taking the appropriate decision for medical intervention according to the patient's health situation. This ultimately requires to inform the patient immediately of his health condition, its development in the future, and what probable interventions may require. On the one hand, the principle of infallibility requires that the human body cannot be touched only after the consent of the patient. On the other hand, the practice of the medical profession requires a minimum level of legal certainty in order to take the initiative and develop diagnosis and treatment methods in a way that makes the doctor's technical side come before his humanitarian commitments. Hence, it was necessary to find an equation between these two requirements.
The jurisprudence of the French judiciary was a pioneer in taking the initiative, but its jurisprudence did not settle on a tight scale capable of identifying a risk checker to be reported. This was an incentive to the French legislator to intervene in order to rearrange the equation.
The rest of the legal experiences have ranged from the inclusion of medical risks within the scope of the duty of informing without specifying its characteristics, or refraining from adopting general rules that define the scope of these risks, leaving the judiciary free to exercise diligence which indicates the difficulty of getting rid of the legacy of medical tutelage as it is the case for the Tunisian Law. This situation has encouraged the proposal of a range of risks to be reported to ensure at least minimum limits to respect the physical integrity of the patient and take into account the specific assumptions required to adapt this band.
"The Scope of the Physician's Commitment to inform the Patient of the Medical Risks: A Comparative Study,"
Journal Sharia and Law: Vol. 2019
, Article 2.
Available at: https://scholarworks.uaeu.ac.ae/sharia_and_law/vol2019/iss77/2