فصلنامه حقوق پزشکی
پیاپی 28 (بهار 1393)

Abstract One of the most important and controversial issues in medical law is “Physician Assisted Suicide” that during the recent decades, it has been a challenging issue among the jurists, criminologists, doctors and even the patients themselves, as a part of the vulnerable population of society. This subject has had its own supporters and opponents. Core of these disputes is the “Right to Die” for the patients. From the perspective of criminal law doctrines, there is a significant difference between the Euthanasia and the above mentioned subject, from the view of doctor’s direct or indirect participation in the patient’s death; which means that doctor is involved in euthanasia directly and provides assistance in the physician assisted suicide. In other words, in direct participation, “doctor” does the actus reus of murder, but in indirect participation, she only helps the “patient” to kill himself. In criminal policy of Iran, suicide is not permissible under the influence of religious and juridical doctrines, but has not been criminalized, and therefore it concluded that assistance in suicide should not be considered criminal. Nevertheless, the legislator of Iran has criminalized aiding and facilitating suicide through the computer systems, telecommunication systems or data carriers, as an independent crime. This article has criticized and analyzed the foundations of criminalization of this issue, as well as, the methods of penal reaction of Iranian legal system toward this problem; and finally has proposed that criminalization of “Physician Assisted Suicide” as an independent crime in order to respect human life and prevent deviant act of suicide.

Nowadays, one of the important problems of law is tort of treatment system which civil law and tort of 1339 are quiet towards it. whereas, respect to patient and defence of human rights at the time of sickness and medical urgencies, has been known as the charter of patient rights without paying attention to age, gender and financial discrimination. Contemporary, if any fail in service or any mistake in planning or implementation causes unintentional consequence and damages, undoubtedly such an action is not appropriate to the patients’ expectation. Unfortunately Regarding to medical damage's increase, the Iranian law system has never been an appropriate responder for compensation of damages. And concerning this point that in Iran's law in which no specific law has been enacted in the context of medical liabilities except some limited provisions in Islamic Penal Code adapted from jurisprudence, and the action of tort is solved based on traditional principles of tort. So it is tried to clarify the necessity of change in medical‌ tort system and make special regulations in Iran's law and creation of a special system for compensation of‌ damages resulted of medical incidents in addition‌ to study a sample of verdicts of courts and professional commissions of medicine.

Kleptomania is one of the psychological disorders which make a patient rob objects. Based on the high rate and hidden feature of this disorder, reviewing the criminal liability of these patients are so important in criminal law and it faces with lots of vagueness. Reaching this aim, first of all, the most important features of this disorder and then the discretion and his psychological situation in the time of theft will be considered by this paper. Furthermore, it scrutinizes the effect of this disorder as an excuse or mitigating factor and concludes that despite the fact that Kleptomania is an acute psychological disease, it cannot be considered as an excuse but mitigating factor.

In a case named “hemophiliha”, the society has observed that because of not separating legal duties and obligations of the related systems, the patients of the case suffered from some irreparable physical and mental damages. So, there is no doubt that in order to provide more support for the patients, it is inevitable to legislate comprehensive regulations by the legislative power for all the fields and especially for blood products. And it is so clear that the society can achieve this goal easily in this way. One of these regulations is the act regarding duties and authorities of the institutions providing blood products such as Ministry of Health and Medical Sciences, Blood Transfer organization and etc. This question is always posed that what are the legal duties of the related organizations? How are their civil liabilities? Is there really any duty overlap among the mentioned organizations and is it necessary to modify the related acts? And basically what legal solutions are there to prevent similar occurrences? In this article, by considering legal authorities’ ideas and analyzing the subject legally, the author tries to find an appropriate respond for the mentioned questions and offer some solutions for providing legal support for these patients.

Addiction, which offends social and moral norms, has been considered as a criminal phenomenon in most of the countries all over the world and has been confronted by various punishment mechanisms which fluctuate from fine and imprisonment to sever punishments such as execution. Dominant approach toward addiction has been considered as "strict" on the part of the states involved employing all above- mentioned punishments. However, it is widely accepted that general punishment should be directed toward rehabilitation and addiction is not exception to this rule. According to the research done in domain of drug abuse it has been proved that not only the rehabilitation of drug user has not been realized but also the number of the criminals in question has dramatically increased. Thus new approach of most states is establishment of treatment- centered drug courts in addition to having new mechanism regarding treatment of the addict and prevention of addiction.

Telemedicine meaning long-distance medicine is one of the ways to provide health care services that takes place using technology and modern equipment. Telemedicine includes services such as telecouncil, teleradiology and telesurgery. Providing telemedicine services to patients is required their informed consent on the delivery of services, the method of treatment and its rate risk. Telemedicine service providers are either physicians or medical centers. When these services are provided by physicians patients` party is for example a physician who takes his council, and internet and online treatment, and the physicians` liability occurs either in the form of contractual liability resulting from fails to perform of contractual obligation or tortious liability resulting from his negligence. In contrast, when services such as telesurgery is provided to the patient, medical center when the surgery will be offered, patients` party. Although in this assumption, we do not imagine a contractual relationship between patient and remote physician, but liability of medical errors is based on some principles like superior respond eat, apparent agency and vicarious liability.

The criminal justice system in application of penal instruments and in order to incorporate personal and social freedoms and for justifying employing punishment, follows different fundamentals and principles and in the field of surrogacy treatment, these criteria are applied in a new style. Conducted studies indicate that the mere altruistic use of surrogacy is considered among none of the principles restricting the freedom and there are only certain ambiguities with respect to commercial replacements. Also about the implications and consequences of surrogacy, using the principles and criteria of criminalization of criminal law, some of the challenges and anomalies resulting from this treatment method can be criminalized. In this context, the principles of prohibition of harm, ethical commitment and social welfare will play an active role, but some principles such as the paternalism principle may have limited application in this regard.