On August 20, 2021, the "Doctor Law of the People's Republic of China" (hereinafter referred to as the "Doctor Law") was voted to pass the "Doctor Law" at the 30th meeting of the Standing Committee of the 13th National People's Congress, which will be implemented on March 1, 2022. The "Doctor Law" better reflects the spirit of the "Basic Medical and Health Promotion Law", is organically connected with the "Traditional Medicine Law of the People's Republic of China", and absorbs the achievements of national epidemic prevention practice. For example, Article 45 has three paragraphs, and has made detailed regulations on the construction of prevention and control talent teams, personnel training, on-the-job training, etc. In addition, in response to the entanglements of the occupational categories and scope of doctors in front-line practices at the grassroots level for many years, we have downplayed the design in a realistic manner.
However, after studying and thinking deeply, I feel that there is still some room for discussion in the "Doctor's Law". Based on my medical management practice and years of research, the following is a brief analysis for reference for relevant departments when formulating or revising supporting documents in the next step, and for reference for grassroots colleagues when promoting this law.
Downplay the categories and scope of practice
Revising the statutory law is an eternal thing, keeping pace with the times, which is what it means. However, the subsequent law should not be followed by the revision of the previous law, so as not to cause too strong rebound sentiment for those who cannot understand it. As needed, try to moisten things silently and gradually change them. This law is a good example of the downplay of the place, category and scope of practitioners' practice. is specifically reflected in Article 14: After registration, physicians can practice in medical and health institutions according to the registered place, category, and scope of practice, and engage in corresponding medical and health services.
Traditional Chinese medicine and integrated traditional Chinese medicine doctors can practice in traditional Chinese medicine, integrated traditional Chinese medicine or other clinical departments in medical institutions according to the registered practice category and scope of practice.
Physicians can increase their professional scope after passing relevant professional training and assessment. If laws and administrative regulations stipulate the qualification conditions for physicians to engage in specific scope of professional activities, the provisions shall be followed.
Traditional Chinese medicine practitioners who have obtained medical qualifications through examinations and passed the training and assessment can adopt Western medicine technical methods related to their profession in their practice activities. In accordance with relevant national regulations, Western medical doctors can adopt traditional Chinese medicine technical methods related to their profession in their practice activities after passing the training and assessment.
After years of practice, we have understood that the design of "diagnosis and treatment subjects" for medical institutions that are not natural persons and the design of the practice location, practice category, and practice scope of natural persons' doctors cannot and do not need to correspond one by one; and the concepts of diagnosis and treatment subjects, practice category and practice scope of their own internal division constructions do not have strict logic, and are mainly based on traditional practices that facilitate the diversion of front-line patients. They have great flexibility, and there is no clear boundary between the internal division structures.
For example, patients with severe COVID-19 can be diagnosed and treated in the infectious disease department, as well as in the critical care medicine department or even respiratory department, depending on the specific needs.
But in the eyes of some mechanical law enforcement officers, the diagnosis and treatment subjects, practice categories and scope of practice are clearly limited. They manage and enforce the law in one-size-fits-all and appropriately, causing a lot of trouble for the clinical frontline. For example, traditional Chinese medicine clinics or internal medicine clinics treat children under 14 years old and are punished for practicing beyond the scope. This is a typical case in various places.
Along with the controversy, the former Ministry of Health and later the National Health and Family Planning Commission and the National Health Commission have continuously formulated documents and issued approvals to open channels. Almost all effective downplay measures implemented over the years have been absorbed into this law.
The first thing that was downplayed is the "practice location", no longer sticking to a specific practice institution, but a provincial regional registration, and a multi-point practice path has been clarified. Article 15 of this Law mainly focuses on the downplay of practice locations, and continues the new registration management measures, namely the new provisions of the "Regulations on the Administration of Practice Registration of Physicians". This is a relatively simple and less controversial move.
Furthermore, it is to loosen the shackles of diagnosis and treatment subjects on the doctor's position, the category of practice and scope of practice that the medical practice has been interfered with on the medical treatment services due to mechanical law enforcement, which is mainly reflected in the fourteenth article
. This article is of great significance. First, it has cleared the job obstacles of traditional Chinese medicine doctors (including doctors with professional scope of traditional Chinese medicine, integration of traditional Chinese and Western medicine, etc.), and clearly supports "or other clinical departments" practice. Even without this sentence, there should not be any obstacles. However, the "Doctor Law" clearly responds and clearly regulates it, effectively avoiding unexpected situations, which is of practical significance. The second is to support increasing the scope of practice. One doctor has more scope of practice, which means that the constraints of a single scope of practice are reduced. Third, it has ended the improper barriers to the diagnosis and treatment service methods of doctors in traditional Chinese medicine and clinical categories. Medical care does not distinguish between things. Everyone can use effective, useful and beneficial diagnosis and treatment methods, methods, and measures to serve patients.
is based on the above content. Let’s look at the first item of Article 22:
Physicians enjoy the following rights in their practice activities: (1) Within the scope of registered practice, conduct medical diagnosis and investigation, disease investigation, medical disposal, issue corresponding medical certificates, and choose reasonable medical, prevention and health care plans.
…
The same content is no longer just mechanical limitations, but gives doctors a wider choice.
Power protection and treatment protection
The "Doctor Law" pays more full attention to the protection of doctors' rights and treatment protection, but the issue of "doctors' power" is more worthy of attention.
Power refers to public power, that is, administrative power. In our health law research, the academic community has only paid attention to the civil subject identity and civil rights of doctors for many years. However, in a certain process of performing duties in accordance with the law, the legal "powers" that medical and health service institutions and their practitioners also have need to be paid attention to, and have regulations, guarantees and constraints in professional laws.
Article 12 of the "Law of the People's Republic of China on the Prevention and Control of Infectious Diseases" (hereinafter referred to as the "Law of the Prevention and Control of Infectious Diseases") stipulates that:
All units and individuals must accept prevention and control measures such as investigation, inspection, sample collection, isolation and treatment of infectious diseases by disease prevention and control institutions and medical institutions, and provide relevant information truthfully.
The doctor-patient relationship at this time is not a civil legal relationship, but a statutory and extremely compulsory administrative legal relationship. There are no three elements of equality, voluntary, and equivalent and paid civil legal relationships. The state compensation system shall apply for infringement damages in this service. For example, improper disclosure of personal information of patients with new coronavirus pneumonia obtained by performing their duties in accordance with the Infectious Disease Prevention and Control Law should be administrative infringement rather than civil infringement. Similarly, if a doctor is injured or even died during this process, his follow-up protection and pension will be even more guaranteed.
Article 12 Paragraph 2 of the Law on Prevention and Control of Infectious Diseases:
If the health administrative department and other relevant departments, disease prevention and control institutions and medical institutions violate the legitimate rights and interests of units and individuals due to illegal implementation of administrative management or prevention and control measures, the relevant units and individuals may apply for administrative reconsideration or file a lawsuit in accordance with the law.
The litigation here continues to administrative reconsideration, indicating that it is not a civil litigation, but an administrative litigation. Compared with this round of anti-epidemic, it is not "equal, voluntary, equivalent and paid" civil service. The doctor who performs his duties in this process exercises the "doctor's power", which is compulsory.
"Doctor's Power" originates from the authorization of many laws and regulations. The content is relatively scattered, which is not conducive to our overall grasp and unified requirements, and is even more unfavorable to the counterparty's active compliance. The "Doctor Law" should explain and regulate the "doctor's power", integrate it with "practice rules", and put forward targeted requirements. It is necessary to strengthen its implementation guarantees and improve the compliance of counterparty members, and to clearly supervise them to ensure that the power is exercised in accordance with the law. This is also an opportunity for China's academic advancement of health law, but unfortunately I missed it again.
Confusion about secondary school education
It is reported that there were originally more strict restrictions on the academic qualifications of those who applied for medical qualifications, but it was eased after soliciting opinions. For details, please refer to Article 64 of this Law:
Paragraph 1: The state takes measures to encourage personnel with medical professional qualifications in secondary vocational schools to improve their medical skills and levels by participating in higher-level academic education. This is to encourage and advocate medical professionals to improve their abilities.
Paragraph 2: Persons who have obtained relevant medical professional qualifications in secondary vocational schools before the implementation of this Law and within a certain period after the implementation of this Law can take the medical qualification examination. This puts certain restrictions on secondary technical secondary school education. However, the relevant statements are vague, which not only makes some candidates hesitate to apply for the exam, but also makes the psychological pressure on readers soar.
The author believes that since people with secondary technical secondary school education are not suitable for applying for medical qualifications, why not start with academic education adjustments? That is, it recognizes all legal channels for education, but gradually reduces and completely cancels medical secondary school education from the perspective of education department management. Therefore, the second paragraph can be modified: the relevant medical professional education in secondary vocational schools will be cancelled within a certain period after the implementation of this law. This is reasonable, reasonable and legal.
Look again Article 47:
The state encourages rural doctors who provide prevention, health care and general medical services to villagers in village medical and health institutions to obtain medical professional qualifications through medical education; and rural doctors who meet the conditions are encouraged to take the physician qualification examination and obtain medical qualifications in accordance with the law.
The country has taken measures to help rural doctors improve their medical technology capabilities and levels through informatization and intelligent means, and further improve the multi-channel subsidy mechanism for service income for rural doctors and policies such as pension.
Specific management measures for rural doctors shall be formulated by the State Council.
interprets this article in combination with Article 64. Is it necessary to encourage "rural doctors to obtain medical professional qualifications through medical education" to target the degree above the technical secondary school? How feasible is this for village doctors? Or it is not rejected or even mainly based on technical secondary school education. So, are these two items conflicting?
look at the examination conditions again. Article 9 of :
If one of the following conditions is met, you can take the practicing physician qualification examination.
(I) Have a bachelor's degree or above in relevant medical majors in colleges and universities, and under the guidance of a practicing physician, he has participated in medical professional work in medical and health institutions for a year.
(II) After having a college degree in relevant medical majors in colleges and obtaining a practicing assistant physician certificate, he or she practices in a medical and health institution for two years.
Article 10:
If you have a college degree or above in relevant medical majors in colleges and universities, and under the guidance of a practicing physician and have participated in medical professional work in medical and health institutions for one year, you can take the qualification examination for practicing assistant physicians.
This article also has certain conflicts with Article 64. It can be seen from the relevant clause that the state intends to improve the qualifications of the medical industry, but there is no relatively complete solution to the legacy of secondary technical secondary school education. However, Article 46, Paragraph 2 of the "Doctor Law" further adds to this: "The specific measures shall be formulated by the health and health department of the State Council in conjunction with the education, traditional Chinese medicine and other relevant departments of the State Council." It can be seen that although the medical industry needs to raise the threshold for academic qualifications, secondary technical secondary school education still has its significance and value and needs to be carefully resolved.
Source: Physician Online Magazine
