Research On The Right To Medical

For a long time,people have equated the right to medical treatment with the right to health.Under the background of “Healthy China”,health as a major subject of the people's livelihood and legal issues should be brought to the attention of the larger,especially at present,the basic medical and health care and health promotion act is underway in the formulation process,to further study of the right to medical is not only an important theoretical problem,is also an important realistic problem.There are different views on the definition of the right to medical.Currently,the definition of the right to medical in the academic circle is mainly in the field of civil law,focusing on the definition of the right to medical from the perspective of property law and contract law,focusing on the coincidence of the right to medical and patient's right,which has been reflected in the basic medical and health promotion law(draft).As a legal right,the right to medical must be clearly defined.The right to medical has many forms,including the human rights,constitutional rights and civil rights,because the right to medical should be discussed from different aspects.Compared with the private right attribute of the right to medical,the social right attribute of the right to medical is its core meaning.The right to medical should be in the visual field of social law,the ability that launches a research and analysis to hit the mark in the fixed position of social right.The key factor for the realization of the right to medical care is the state obligation,which is not only the state responsibility pointed out by the human rights law,but also the embodiment of the national governance ability.At the same time,the research of the right to medical can't ignore the defensive protection of medical freedom,and the the right to medical can't emphasize the protection of rights unilaterally,so as not to slip into "favor" or "gift".This is especially evident in the protection of the rights of AIDS patients.As a basic right for everyone to obtain medical services from the state or society,the right to medical has a similar functional connotation with the right to education and other rights.At present,there is little research on the theoretical basis of the right to medical,and no real attention has been paid to it.Medical treatment has developed from a technical behavior of treatment to a fundamental right enjoyed by people in modern society.It has gone through a historical evolution process from "equal rights to identity","identity to contract",and "contract to human rights",which reflects the development process of human medical rule of law.As a socialist country,from the perspective of Marx's concept of rights,the right to medical care is an important part of the proletariat's movement towards freedom and liberation.Although the bourgeois concept of the right to medicals has the progressive significance of ensuring people's livelihood,the exploitation and inequality of its material production mode determine the falkiness.There are also various theoretical disputes about the right to medical,which are mainly manifested in the negation of liberalism and utilitarianism,but these reasons cannot negate the objectivity and reality of the right to medical treatment.In a sense,the debate on the right to medical treatment just reflects the rootlessness and emptiness of the western bourgeois view of rights.Therefore,only by an in-depth analysis of the historical logic and legal logic,the right to medical can be truly understood,and learned further the connotation and development direction of the right to medical.As a legal right,the right to medical must have its internal structure analyzed.The right subject and obligation subject have their own unique characteristics.The subject of the right to medical should reflect the universal enjoyment.Relative to the civil rights and other rights,the right to medical is pointing to the body of the first,want to reflect a borderless humanitarian,how in the limited medical resources allocation and balance between medical territorialism safeguard,the world's countries especially developed countries,in particular,need to solve the problem,but from a legal sense,the right of medical subject should have extensive and universality,especially must pay attention to special groups such as the elderly,children,women,the disabled,and even prisoners,illegal immigration,such as the main body of special protection of ethnic minorities.There is no doubt that the subject of the core obligation of the right to medical care should be the state.However,countries should respect their national conditions and actual conditions when implementing the responsibility of safeguarding their right to medical care.However,the minimum standard set by the international conventions of the United Nations should be the political responsibility and legal bottom line that all countries should abide by.The system of the right to medical is an inevitable way for it to be integrated into the whole legal system as a legal right and obtain the logical argumentation of the law and the orientation of the system.The systematization of the right to medical should be based on social right,and the dual analysis structure of defensive right and revenue right has legitimacy and rationality for the fundamental issue of "power-right" involved in the interpretation of the right to medical.Therefore,the right to medical treatment can be divided into defensive the right to medicals with the right to make medical decisions,the right to medical participation and the right to medical relief as the content.The right to medical benefit is the system center of the right to medical,including the right to share medical resources,the right to medical security,the right to medical assistance and the right to obtain drugs as the content.As the right to medical is standardized in this dual structure mode,the law on basic medical care and health promotion that is being formulated should absorb the theoretical research experience,separate out patients' rights and other private rights,and put them under civil law for protection.The protection of the right and the relief are the right to medical important content.From the perspective of legal systems of various countries in the world,the protection of the right to medical treatment is respectively protected from the perspective of human rights legal mechanism,constitution and common law,thus forming the international law and domestic law mechanism of the protection of the right to medical treatment.From the point of system construction,in accordance with the responsibility of the government in health care and management capabilities,there are three kinds of modes,one is a delegate with countries such as Britain,Canada,government medical security mode,another one is a delegate with Germany,Japan and other countries the government dominant mode of health care,and represented by the United States government to fill a vacancy of medical security mode.These security modes,combined with their own national conditions,undertake the guarantee of the right to medicals in an orderly manner.The right of medical relief for now is relatively weak,the right of health administrative remedy by countries to set up the corresponding complaint mechanism protected,but the judicial relief for survivability basis of health must bear the palm responsibility,or the right of medical operation is no root of wood,madrasa reflected.In the context of Healthy China,in recent years,with the introduction of the social insurance law and other laws,and the enactment of the law on basic medical care and health promotion,the protection of the right to medical care has been paid more and more attention by the party and the country.However,it should be noted that China has a large population base,a vast territory,large regional differences,heavy historical burden,and great challenges in the protection and realization of the right to medical care.The obstacles to the realization of the right to medical system in China include insufficient legislation,structural defects of the security mechanism,and ineffective relief system.From the perspective of law,the primary task of the right to medicals protection in China is to legislate on the right to medicals.At the same time,the operation mechanism of government medical security should be straightened out,the unbalanced medical insurance system should be corrected,and the right to medicals relief should be improved.Since the 18 th CPC national congress,China has made great progress in the construction of relevant systems of the right to medicals,but it still needs the joint efforts of the theoretical and practical circles.We have reason to believe that the good law and good governance of the right to medicals system with Chinese characteristics will definitely come into being.