公共醫療行政下之正當法律程序探究

健康系統區分為「公共衛生」與「醫療照顧」兩個領域，前者針對公眾健康，後者針對個人健康。若以維護公眾健康為目的，施行於個人的醫療行為，將之名為「公共醫療」，以國家政策推動，稱之為「公共醫療行政」。公共醫療行政範圍涵蓋具公法性質的衛生行政及私法性質的醫治行為，本文針對公共醫療行政業務，分為授益及管制醫療行政，由《經濟社會文化權利國際公約》的健康權，討論授益醫療行政中人民就核心健康義務之請求權。由《公民與政治權利國際公約》的醫療自主權，討論管制醫療行政中防止國家侵害之防禦權。研究發現，健康權並非我國憲法明文規定基本權利，無法成為人民對國家要求作成一定行為之給付請求權。醫療自主權為個人免於接受非經同意治療的權利，允許醫療自主權訴訟，可避免出現不當強制治療的可能。行政機關具有專業裁量權，司法仍應就是否濫用權力與是否符合正當法律程序原則進行審查。對於剝奪人身自由之強制處分，應有提審法之適用。公共醫療行政中專業人員角色應為行政輔助人，行為效果歸屬於行政機關。公共醫療的責任，分為合法行為所致之國家補償責任，與非法行為所致之國家賠償責任。公共醫療行政損失補償之特別犧牲補償理論，在可預期範圍內為公共利益所承擔「社會義務」之補償。公共醫療行政損失補償之國家危險責任理論，為行政行為所創造的危險狀態下，造成人民損害的國家補償責任。研究建議，政策應擺脫營造徒具「醫療同意」的外觀，將公共醫療與一般醫療行為互相混淆的行政模式，應重新建構公共醫療行政之行政法規範論述，並以正當法律程序原則作為其正當性基礎。

關鍵字

公共醫療行政；健康權；醫療自主權；正當法律程序原則

並列摘要

The health system is divided into two areas: "Public Health" and "Medical Care". The former focuses on public health while the latter focuses on personal health. If personal medical treatment is done for the purpose of safeguarding public health, it is classified as "Public Medical Care". And it is promoted by the national policy, it is called "Public Medical Administration". The public medical care provider is both the public law of the nature public health administration and private law of personal medical treatment, and it can be described as complicated. This article is directed at the public medical administrative services, which are divided into grants and regulatory medical administrations. The right to health of the "International Covenant on Economic, Social and Cultural Rights" are discussed with granting medical administration and the people’s right to request the country’s core health obligations. The medical autonomy of the “International Covenant on Civil and Political Rights”, as defense rights, are discussed with the regulatory medical administration and the infringement by others and the State. The study found that the right to health is not a basic right that is expressly provided for by the our country constitution and cannot be a right for the people to make a request for state behavior. Medical autonomy advocates that individuals are free from the right to non-consensual treatment, and only allowed medical autonomy lawsuits can avoid the infringement of the country's improper coercive treatment, and it is also the people’s defense right to state regulatory medical administration. Although the administrative authority has its own discretionary powers, the judiciary should still examine whether its decision-making procedure is abused and whether it meets the principles of due process. With regard to the regulatory medical administration of the deprivation of liberty, the arraignment law should be applied to meet the principle of retention of judges. The role of professionals in the public medical administration is the administrative assistant, and the meaning and effect of the administration belong to the administrative agency. The responsibility for public medical administration is divided into the national compensation liability for damage caused by legal actions, and the damage caused by illegal actions is the state’s liability for damages. The public medical administration must bear the responsibility of the burden of proof in order to prevent the executive authority from infringing upon the rights of the people through abuse of power. It is also a state responsibility for damages and compensation for the people. With regard to compensation for public medical administrative losses, the theory of sacrificing compensation in particular is to sacrifice compensation under the “social obligation” undertaken by the public interest within a predictable and compensable range of human dignity. In addition, the national dangerous liability theory is the state’s responsibility to compensate people in the dangerous state created by administrative acts. The study suggests that policies should move away from the traditional way of creating “medical consent” appearance, while confusing public medical administration with general medical behavior. It is necessary to reconstruct the public medical administration on administrative law, follow the principles of due process, and use them as the basis.