The Conceptual Scope of Guardian of Patient in Note 2 of Article 495 of the Islamic Penal Code 2013
The legislator in Note 2 of Article 495 of the Islamic Penal Code, introduces the guardian of unconscious patient in order to consent to treatment or discharge (action regarding quittance) of certain damages as the father and the public guardian and authority (the Supreme Leader). This Note is deriv...
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| Main Authors: | , , , |
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| Format: | Article |
| Language: | fas |
| Published: |
Razavi University of Islamic Sciences
2024-05-01
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| Series: | آموزههای فقه مدني |
| Subjects: | |
| Online Access: | https://cjd.razavi.ac.ir/article_1730_efe56fa48bef0b8e7864f81fd666b1ee.pdf |
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| Summary: | The legislator in Note 2 of Article 495 of the Islamic Penal Code, introduces the guardian of unconscious patient in order to consent to treatment or discharge (action regarding quittance) of certain damages as the father and the public guardian and authority (the Supreme Leader). This Note is derived from jurisprudential texts, and there is a question regarding the mentioned Note, who is meant by specific guardian? Do the patient’s relatives have the entitlement to sign the medical clearance? The present research which is written in an analytical-descriptive method, concludes by examining the cases cited in the jurisprudent’s theology that the verse “But those of [blood] relationship are more entitled [to inheritance]” (Arabic: وَأُولُو الْأَرْحَامِ بَعْضُهُمْ أَوْلَی بِبَعْضٍ, Transliteration: waoloo alarhami baAAduhum awla bibaAAdin) can be accepted as a general rule in response to the above question, and in the assumption of the anesthesia of the patient who has been removed from under the authority can also be referred to his relatives to obtain clearance. The legal and jurisprudential studies such as diligent search in cases of application and citation of the mentioned verse by the Jaʿfarī jurists by generalizing the verse or rectifying or isolating the effective cause as well as the rule of prohibition of detriment (Arabic: لا ضَرَرَ, principle of harm) and think carefully about the practice governing the medical condition of the country at the present time, reinforces the hypothesis that the meaning of the guardian in this note is not a natural guardian (compulsory guardian) but is the satisfaction of one of the patient’s first-degree relatives (customary guardian) which is jurisprudentially and legally is correct and will exempt the physician from liability. |
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| ISSN: | 2251-936X 2783-3690 |