Criminal Liability Research in Vaccine Administration by Public Health Nurse: A Case Study of the Nantou Vaccine Administration Case

預防接種被認爲是疾病控制及消除的重要有效公共衛生工具，而護理人員於預防接種中爲健康醫療專業中的關鍵角色。不僅在幼兒預防接種中，在增加中的旅遊預防接種及流感預防接種中，護理人員爲主要的力量。護理人員於此工作中扮演領導及品質維護角色，但是護理人員於預防注射行爲中的法律定位牴觸。護理人員須了解於施行預防注射時沒有醫師指示之適法性。邇來因公衛護士在未有醫生指示時爲幼兒施打疫苗，該名幼兒死亡，檢察官遂以涉及違反醫師法及刑法爲由，進而起訴該名護士及當地衛生局長。雖一審法院對該護士及衛生局長爲無罪之判決，仍指出該護士之行爲仍屬違反醫師法第28條之規定。對此，正反映出實務與法律的扞格之處。爲確保預防接種能在合法且有效的情況下妥善實施（特別在偏遠地區），於民國九十五年六月十四日，總統公布立法院修正通過傳染病防治法第四條之規定，將預防接種業務排除醫師法第二十八條之適用。未來偏遠地區衛生所護理人員可單獨執行預防接種工作，不受醫師法第二十八條「須受醫師指示」之限制，使全國的護理人員都能安心盡心的爲國家的預防接種工作奮鬥。但是護理人員於執行預防接種工作時仍須負刑法業務過失之責任，故仍應盡到注意義務。

關鍵字

預防接種；傳染病防治法；醫師法；業務過失；法律優位原則

並列摘要

Immunization is recognized as a powerful public health tool in disease control and eradication. Registered nurses (RNs) are the principal health professionals responsible for administering vaccines, not only in terms of childhood immunization but also increasingly in administering travel vaccines and annual influenza vaccinations. The RN often provides leadership in developing and maintaining a high quality program. The legal position of nurses when administering a vaccine conflicts with their role as care providers, and nurses must be aware of their legal position when administering a vaccine that has not been individually prescribed by a doctor. A recent case involving a baby who died after receiving a vaccine administered by a public health nurse without a doctor's prescription resulted in the prosecutor initiating a prosecution against the nurse and chief of Health Bureau for a violation of Article 28 of the Physician's Act and the criminal law. Although the nurse and Bureau Chief were judged not guilty, the first trial court pointed out that the behavior of this nurse still violated Article 28. This reflects the conflict that exists between empirical practice and legal regulations. In order to guarantee that prophylactic inoculation is implemented properly under legitimate and effective conditions (specially in remote districts), in May 23, 2006, Legislative Yuan passed an amendment to Article 4 of the Communicable Disease Control Act, which specified that no public health nurse can be prosecuted for violations of Article 28 of the Physician's Act as a result of vaccine administration. In the future, nurses in clinics located in remote districts may conduct prophylactic inoculation work without fear of the terms of Article 28 and focus on implementing public prophylactic inoculation responsibilities. However, a public health nurse can still be liable for the malpractice in criminal law during the vaccination. Therefore, following procedure is still necessary in the conduct of vaccination duties.

並列關鍵字

vaccine inoculation ； communicable disease control act ； physician law ； malpractice ； Vorrang des Gesetzes German

參考文獻

Communicable Disease Control Act(2006).(The immunization matters mentioned in Paragraph 1 may be implemented by nursing personnel, and are not under the restrictions of the regulations of Article 28 of he Physician`s Act).

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Criminal Code(2008).(A practitioner who negligently causes death in the course of practice shall be sentenced to imprisonment or criminal detention for a term not exceeding five years, and may additionally be fined an amount not exceeding 3,000 dollars).