Law On China's Medical Rights Of Study

While our society is becoming more and more democratic, harmonious, and reasonably ruled by law, the occupational environment for doctors is deteriorating day by day. The medical profession is characterized by high technicality and high riskiness, requiring doctors to take more responsibilities and to dedicate a lot. In developed countries doctors' rights and high social position with matched salary are ensured by laws and regulations; regular commercial insurance system and social security system are established to balance the doctors' rights and duties and to lessen their occupational risks, yet in our country, doctors' rights are poorly ensured due to the absence of perfect medical responsibility insurance system, dedication out of proportion with reward, manifested in prolonged work, intensive labor, low salary, poor welfare, and little respect or understanding resulted from media's misleading. Such occupational environment burdens doctors with more responsibilities, hurting them physically and mentally. How to improve the situation? This paper discussed it in three sections.Section One:Briefly on the Rights of Medical Personnel and ServicesThis section was discussed in three parts. Firstly, the rights of medical services and personnel were summed up by detailing the origin of related laws, according to which, medical services enjoy the right to claim medical expenses, the right of management, the right to suspend performance, and any rights a legal person enjoys such as property right, reputation right, and IPRs. Among the rights of medical personnel, doctors' rights were made the focal point, which include practice privileges such as the right to enquire, the right to examine, the right to diagnose and treat, the right to give certificate, the special right to intervene, medical immunity, and medical discretion; other related rights include the right to be rewarded and respected, the right to be trained, and the right to participate in democratic management. Secondly, relations between medical personnel and patients were discussed by summarizing the duties of medical personnel and patients. According to general jurisprudence research, the paper concluded that the right-and-duty relations between medical personnel and patients are heart of the matter. The medical personnel's rights to enjoy and duties to take are closely correlated with the ones of patients. Thirdly, relations between medical personnel and patients determined by different medical models were summarized to analyze its changes. Since the birth of medicine, man has been experiencing four medical models or periods. In the witch doctor period, doctors, with the power of the deity, had the highest authority over their patients. The natural medicine period, in which doctors, with the development of medical ethnics, tried their best to treat patients, who fully trusted their doctors and enjoyed no rights. The bio-medical model helped to bring about application of machines in medical services; high technology maximized doctors'rights. The present bio-psycho-social medicine model then pays more attention to patients'rights yet makes doctors take on more responsibilities and duties.Section Two:On Theories and Legal Protection of Each RightPart one:Theories of Each Right of Medical Personnel and ServicesIn medical practice, some rights of medical personnel and services are not clearly supported by laws or regulations; as a result, these rights are not really enjoyed, which impairs the legal interest of both doctors and patients and leads to deterioration of the doctor-patient relationship. To put it more specifically, doctors'special right to intervene, medical discretion, medical immunity and the right to secure practicing failed to be protected laws or regulations. In this part, each right's connotation, origin and form were studied and analyzed with the reference to related theories and legal practice of other countries, anticipant to effectively secure the fulfillment of medical personnel and services'rights.Special right to intervene is one of the doctors'basic rights, but there is no any specific law or regulation at present in our country to definitely secure its fulfillment. It is only defined in "The Tort Law of the People's Republic of China" as appropriate actions when doctors are saving a heavy patient and in the "Law of the People's Republic of China on Medical Practitioners" in the form of predatory obligation. Lacking in support of laws or regulations, the special right to intervene cannot be exercised, doctors afraid of taking imperative actions to save a patient in severe condition. By studying the theories and practicing experiences in China and other countries, we found that in the statute laws of America and Japan, special right of intervene is stipulated in its limit of power, situation for application and legal effect, along with feasible procedure to insure its practice. In our country, most experts are positive in the legislation to secure the exercise of the right. And it can be concluded that defining the right's legal position and establishing a procedure to exercise the right is helpful for preventing patients'abuse of their right.Medical discretion can be explained broadly as the doctors'right to decide and adjust therapeutic regimen according to patient condition; narrowly speaking, it means that doctors have the right to decide what to tell to the patients'family members in performing the duty of disclosure. The "Law of the People's Republic of China on Medical Practitioners", article 26 stipulated that doctors should avoid any harmful consequence in performing the duty of disclosure. In such countries as America and Japan, exercise of the medical discretion is most seen in the judicial precedents of judicial practice, yet in our country, medical discretion sometimes conflicts with the right of informed consent due to unclearness in defining the medical discretion.Medical practice immunity is a special right which had long since existed as an ethical principle it became guaranteed by a law. Impairment will some time happen in medical practice due to high riskiness and limited technology, and that explained the reason why there should be such right. The exercise of medical immunity is embodied in two aspects:efficacy of escape clauses in informed consent of operation and the liability to pay compensation when medical damages happen without fault. Although most experts think at present the escape clauses in informed consent of operation drafted by the medical institutes of our country cannot be basis for exemption from liability, the writer of this paper believe that they are sensible and should be affirmed and protected by law after jurisprudence and ethics analyses.The practicing rights of medical practitioner are based on doctors' practice privileges, including the right to be rewarded, the right to be trained, and the right to be respected. In this paper, the writer selected six hospitals in Beijing, where 180 doctors were investigated with satisfaction questionnaires, and it showed that most doctors were not satisfied. With analysis of other literatures, we concluded that although the "Law of the People's Republic of China on Medical Practitioners" stipulated those rights, in practice, medical practitioners failed to enjoy them, which had become a leading factor for the deterioration of doctors'occupational environment.Part Two:Legal Protection of Each RightAlthough there are such laws or regulations as "Law of the People's Republic of China on Medical Practitioners", "Managerial Regulation of the Medical Institutions" and "The Regulation on the Handling of Medical Accidents", there is not an integral and standard system to adjust the doctor-patient relationship. Also, these laws and regulations are imperfect in exercise. With reference to the experiences of developed countries, it is necessary for our country to draw up an independent "Medical Law" which should have involved the medical personnel and services'special right to intervene, medical discretion, medical immunity, the practicing rights of medical practitioner, the right of patients'informed consent, liability to compensate for medical damages, and so on. See the details below.First, perfect the system of the patients'informed consent through legislation:clarify its content and limit.Second, suggestions on legislation of the special right to intervene: legislate to ensure the enjoyment of the right, specify its procedure of implementation, and establish institution of inspection.Third, accomplish notification system, ensuring the enjoyment of medical-discretion:further specify its forms, limit, procedure and content.Forth, clarify the legal effect of medical immunity, and accomplish the legislation form and content of informed consent.Fifth, specify the principle of liability to pay compensation when medical damages happen without fault.Part Three:On Protection of Doctors and Medical Services' RightTo improve the protection of doctors and medical services' right, a system of laws and regulations should be established in addition to the following measures:establish a system of medical responsibility insurance, reform the present payment system, and perfect regulations to ensure doctors' training, especially for countryside doctors.1 An Effective System of Medical Liability InsuranceMedical liability insurance, the medical institutions to the community to share the health risks caused by the loss, thereby reducing health care institutions and economic pressure on doctors an economic shift mechanism. Medical liability insurance in developed countries has been developed over a hundred years, forming a mature and effective mode of operation. Medical liability insurance in China late development, there is no national legal norms, the low level of relevant legislation; premiums high, and setting standards is not scientific enough; lower liability limits, liability duration; the law applicable to cause confusion in non-uniform standard of compensation. The existing problem caused medical liability insurance, medical institutions for effective demand shortage of medical liability insurance system in our country can not Zhenzheng play Fendan risks. By drawing on the United States, Britain, the experiences of Japan and other countries to explore the development of medical liability insurance system responses:using legislative means to enforce the medical liability insurance; the establishment of integrated multi-mode medical liability insurance system; improve the medical liability insurance contract terms, rich in Insurance insurance coverage; the establishment of exclusive agencies dealing with medical liability insurance claims.2 System of Increasing Physician IncomeState health and public health agencies lack effective input, physician services are undervalued, and other causes rigid pay system at a comparatively low level of physician income, can not reflect a fair and reasonable remuneration system. Low-income following undesirable effects:moral hazard caused physicians, increased patient"doctor you"phenomenon; physicians working enthusiasm was dampened, job satisfaction is low. Increase physician income, improving the existing pay system is working actively encouraging physicians to play a more useful means of. Reform pay system content, raising pay levels and increase state investment to return to public welfare nature of public hospitals is an effective way to increase revenue physicians.3 On Building the System of TrainingMedicine is a life-long learning needs of professional, sound system, physician training, improve physician training mode is the right of physicians to enjoy the fundamental guarantee for professional learning. The current model of medical education exist in some of the problems have gradually surfaced:many settings such as school education curriculum, lack of humanism; training content requirements of education after graduation imperfect; general physician training system construction can not meet the actual needs, as a constraint to medical education healthy development of the bottleneck. Improve medical education training model, improve physician training system should be strengthened in all stages of medical education laws and regulations of medical education and mental fostering; clear legal status of residency training system, building access system for physician qualification and elimination system; establishment sound system of training general practitioners.