【作者】 杨帆；

【导师】 贾红英；

【作者基本信息】 华中科技大学 ， 社会医学与卫生事业管理， 2008， 硕士

【摘要】 目的本研究在对我国《执业医师法》及配套法规、国外对执业医师管理的相关规定以及其他相关文献资料的研究基础上,通过对国内外医师的资格准入、执业规则、执业监管、法律责任等进行分析及评价,借鉴国外执业医师立法的理论与实践经验,并且结合现场调研和立法应遵循的基本原则,找出我国《执业医师法》中存在的主要问题;在此基础上,提出符合中国国情的科学完善的立法建议,进一步完善我国执业医师法律制度,从而促进我国卫生事业的健康发展,并且为有权立法机关修改和完善《执业医师法》提供参考。方法1.文献研究:研究国内外执业医师立法的基本情况及相关理论基础,系统回顾文献中提到的我国《执业医师法》存在的问题并为设计调查问卷提供理论依据;2.问卷调查:采用多阶段抽样的方法,调查医生、医院行政管理人员和卫生行政管理部门有关人员共99名,通过排列图法和非参数检验,找出《执业医师法》存在的主要问题并分析不同岗位、职务、职称等的人员对问题看法的差异性;3.现场访谈:充分了解调查对象对《执业医师法》及其在实施过程中的看法,对问卷调查中遗漏的重要问题进行及时补充;4.专家咨询:邀请卫生法学方面的专家,对我国《执业医师法》中所规定的条款内容恰当与否、其立法基础、本研究提出建议的合理性等进行咨询;5.比较法:通过对国内外《执业医师法》及相关行业法律的比较,提出完善我国《执业医师法》的建议。结果1.立法的理论基础:根据《执业医师法》体现公众与医师执业利益兼顾、医师执业权利与义务统一、调整医师执业行为和卫生行政部门的监督行为等特点,我国《执业医师法》的完善应以平衡论为基础;2.我国自1998年《执业医师法》颁布以来,陆续出台了一系列的配套规定以保障法律的实施;3.现场研究结果显示《执业医师法》存在的主要问题有:医师权益保障不足;变更执业地点手续繁琐、不能异地注册执业,不利于医师资源共享;考试资格中学历要求与其他政策不一致,使基层一些有能力无学历的人员无法成为执业医师,医学生毕业时间与执业时间矛盾;考试中实践操作部分不规范,存在以口述代替实际操作的现象;考核和培训不到位等;4.不同人员对《执业医师法》存在问题的看法具有差异性。讨论1.从立法理论分析我国《执业医师法》的不足:虽然我国《执业医师法》体现了平衡论的思想,但是还存在一些不足,主体思想仍然以行政机构权力为主,行政相对人权利为辅;《执业医师法》及其配套法规缺乏医师合法权益实现的保障措施。2.立法中未对医师协会的地位和作用进行规定:《执业医师法》中未对医师协会地位和作用进行规定,没有强调执业医师必须参加,而法律要求律师和会计师必须加入协会;政府行政部门体制改革是实施行业管理的动力,卫生行政部门过多的涉及日常事务管理,不利于宏观调控。在国外,医师主要是依靠行业管理。3.立法中没有充分体现医师权益保障:医疗纠纷损害医师和患者的利益;立法中患者知情同意权规定不清、对医师权益保护不力,导致医疗纠纷。4.立法中关于执业医师变更执业地点、异地注册的规定亟待完善:立法中关于执业医师变更执业地点手续复杂,增加了变更注册地点的成本,不利于人力资源合理流动;减少和精简行政审批事项提高行政效率是目前我国行政改革的必然趋势。5.立法中执业医师考试资格与其他政策不一致:立法中执业医师考试资格对学历方面的规定,部门内以及部门之间的政策不协调,导致毕业与执业时间不一致,给医学生就业带来困难。6.执业医师考试实施中存在问题:执业医师实践技能考试操作部分以口述代替实际操作,监考中受主考医师主观因素影响很大;按照固定比例划定分数线,一方面将导致不合格人群纳入到医师队伍,另一方面也会导致合格的人群不能进入医师队伍。7.立法中医师培训和考核的规范操作性不强;8.统一标准下农村执业(助理)医师缺乏:依据《执业医师法》及其配套规定,在我国乡以上医疗卫生机构从事医疗预防保健的医生必须具备执业(助理)医师资格,以提高农村医师队伍质量,但是出现了乡镇卫生院医生一旦具备执业(助理)医师资格即向城市流动的现象。建议1.增加提高医师协会地位和作用的具体规定;2.完善患者知情同意权和对医师伤害等级界定等相关条款,保障医师权益;3.逐步取消注册地域限制,以提高资源共享水平;4.调整医师资格考试要求;5.合理化、客观化执业医师考试实施;6.规范培训和考核;7.教育项目与强制措施结合缓解农村卫生人力缺乏;8.加强《执业医师法》的宣传和相关人员的培训。更多还原

【Abstract】 ObjectivesBased on researching on the Law of the People’s Republic of China on Medical Practitioners (Law of Medical Practitioners, for short), its supported regulations, regulations of medical practitioners in foreign countries and other related literatures, this study analyzed the qualification of medical practitioners, practice rules, practice monitoring, legal duties and responsibilities, etc, in domestic and abroad, learned theories of legislation on medical professionals and experiences, and combined the results of field investigation and basic rule for legislation, then found out the major problems existed in the law of Medical Practitioners. After that, scientific legislation suggestions which are fit for the situation of our country were supplied to further perfect the law system of medical practitioners in China, then promote the development of the health industry and give the proofs and ideas for those legislation bureaus when they are revising and perfecting the law.Methods1. Literature review: Literatures were seriously reviewed, focusing on the basic legislation situation of medical practitioners in domestic and foreign countries, and related theories; the problems mentioned in literatures were systematically collected, which could be useful in the questionnaires.2. Questionnaire survey: Multiply sampling method was adapted, and 99 participants were investigated by questionnaire including doctors, administrators of hospital and officers in health administration department; accumulation-queue chart analysis was used to find out the major problems, and difference opinions among participants with different occupations, duties, posts and other variations were compared by non-parameter test.3. Field interview: Some participants were deeply interviewed, fully considered the opinions on the Law of Medical Practitioners and the implementation process, to add the problems missed during the questionnaire survey in timely;4. Expert advice: Experts in health law were invited to advise on the propriety of law terms, legislation basic and suggestions made in this study;5. Comparative Study: Compared law of medical practitioners in China with those abroad and with laws of related industries, and give some suggestions to improve Law of Medical Practitioners.Results1. Basic of legislation theory: After considering the characters of this law, that taking into account both rights of the public and medical practitioners, balancing rights and obligations of physicians, and adjusting activities of doctors and officers in health administration departments, the experts suggested that the“Theory of balance”should be the basis of law revision.2. Since the promulgation of law of medical practitioners in 1998, a set of supporting regulations were implemented to make sure the execution of the law.3. The main problems in law of medical practitioners showed in the results of field research were: lacking sufficient protection of physicians’rights and interests; complicate procedures of registered place change and no permission to practice outside the registered place, which were obstacles to sharing medical resources; inconsistence of regulations on academic qualification for examination in law of medical practitioners with that in other policies leaded to that some medical staffs can not get the license, who had strong capacity but without some certain education backgrounds, and caused the time conflicts between graduation and practice for medical students; non-standard execution when taking operation part of the licensure examination, in which using oral description instead of actual operation; and unsoundly implemented assessment and training, and so on.4. There were differences in the views of different personnel on the law of medical practitioners. Discussion1. Analyze the faults of Law of Medical Practitioners using legislation theory: although the Law of Medical Practitioners has embodied the idea of balance, there are still some shortcomings, such as the main idea of the law is to guarantee the rights of government departments, supplemented by the right and benefit of administrated subjects; the Law of Medical Practitioners and its supporting regulations lack protection of the legitimate rights and interests of physicians.2. No legislation item about the status and function of the Medical Practitioners Association: In the law, there is no item about the status and function of the Medical Practitioners Association, and it does not compulsively require physicians join, while lawyers and accountant must join their associations required by law; the innovation of government department is the motivity to implement industry self-management, and if health administration departments involved in too many daily management, it is not benefit for them to conduct macro-control. And in foreign countries, physician management mainly relies on industry self-management.3. Legislation does not adequately protect the rights of physicians: medical disputes impair the right of physicians and patients; no clear claim about the patients’right of being informed-and-consent and inadequate protection of the rights of physicians results in medical disputes.4. The legislations on registration locations change and remote registration requires improvement: the procedure of changing registration of the place is complex, increases the cost and is not conducive to healthy flows of medical human resources; reducing the approval items by administrative department and simplifying the procedures to improve the administrative efficiency is an inevitable trend of reform.5. The regulation on the qualification of medical practitioners’examination is inconsistent with other policies: in the aspect of legislation on education qualification of medical practitioners’examination, there is inconsistence between and within departments; and the time difference between the graduate and practice causing inconvenience for medical students.6. There are some problems in the execution of medical practitioner examination: when taking operation part of the licensure examination, oral description is adopted instead of actual operation, and the exam is quite impacted by the invigilators’subjective factors; a fixed proportion of pass in result of dynamic score line leads to unqualified people entering ranks of doctors on one hand and would also lead to the qualified can not join the party of medical practitioners on the other hand.7. The regulation on training and assessment of medical practitioners are with little maneuverability;8. Under the uniform standards of doctors management, medical practitioners (or medical assistant practitioners) are in shortage in rural area: according to the Law of Medical Practitioners and its supporting regulations, those who provide treatment, prevention and health care services in China’s rural health institutions must obtain licenses of Medical Practitioner (or Medical Assistant Practitioner), to improve the quality of rural doctors; however, once the doctors in rural township hospital get the license, they migrant to urban areas.Suggestions1. Add some items about improving the status of Medical Practionners Assciation and its function in the Law of Medical Pracitioners;2. Perfect the related items about patients’rights to be informed-and-consent and definition of injury classes to medical staff to guarantee the right of doctors;3. Graduatelly cancel the rehibition of registration place to improve the sharing of medical resource;4. Adjusting the qualification of medical practitioners’examination;5. Rationalize the implementation of medical practitioners’examination and make it objective;6. Standardize physician training procedures and make strict assessment to physicians;7. Education programs and compulsive strategies combines to ease or solve the problem of health human resource shortage in rural area;8. Strenghten the propagandization of the law and the education to some related person.更多还原