The Analysis of the Rights of Health Care and the National Health Insurance

• Main Authors: Chuan-Feng Wu, 吳全峰
• Other Authors: Weng F. Huang
• Format: Others
• Language: zh-TW
• Published: 1999
• Online Access: http://ndltd.ncl.edu.tw/handle/46631295913537439782

碩士 === 國立陽明大學 === 衛生福利研究所 === 87 === The National Health Insurance (NHI) protected people’s health rights, but on the other hand some policies of the NHS also limited people''s rights of health care (or “rights of patients and health care”). For example, Article 11-1 limited people’s right to choose anout not to subscribe to the NHS, Title 1 of Article 33 limited people’s right of freedom to choose in receiving the health services, and Subtitle 1 and Subtitle 2 of Article 11 limited military‘s and criminal’s right to subscribe to the NHS. So the analysis of the NHS system should not only in the perspective of efficiency or welfare, but also in the perspective of people’s rights. This study intends to explore the impact of NHI on the rights of health care, and to discuss the process of conflicts between different rights as well as the conflict between rights and efficiency. This research is based on literature review and law analysis. The discussion and analysis are conducted by two part. First, this research established a system of freedom rights, social rights, rights of health care and etc. Second, this research used this system to discuss the impact of the NHS on the rights of health care in the perspective of policy and law. In the first part, because the rights of health care are new concept of rights, there is no clear demarcation to explain it. After collecting and analyzing the international laws, the domestic laws and the discussion of the scholars, this research demarcates the rights of health care as ''"the rights that people can not only request the government to do something about health, but also admit or refuse to receive health care services with dignity, freedom, and equality". In the second part, the coverage of this research only focused on the Article 11-1 (Mandatory Insurance), the Article 6 (State Monopolized Insurance Organization), the Article 11 (Exclusion of Insurance Eligibility), and the Article 33 (Incremental Copayment) of National Health Insurance Act. After analyzing the relationship between the rights of health care and the NHS system, it was found that policymakers seemed to ignore the perspective of the rights of health care in the process of policy decision making. When analyzing with “Gesetzesvorbehalt”, some actions of the government might violate the Article 33. When analyzing with “Geeignetheit” (or “Tauglichkeit od. Zwecktauglichkeit”), the Article 11-1, the Article 6, the Article 11, and the Article 33 might not ruin this principle. When analyzing with “Erforderlichkeit” (or “Prinzip des geringstoglichen Eingriffs”), the Article 6, the Article 11, and the Article 33 might ruin this principle and the policymakers should think and debate more thoroughly. The Article 11-1 might not ruin this principle, but the policymakers should think other policy to replace the former so the strength of limitation can be eased. When analyzing with “verhaltnismaβigkeit im engeren Sinne”, the Article 6, the Article 11, and the Article 33 might ruin this principle. Only Article 11-1 had the right and proper relationship between the limited rights and public interests. On the other issues, this research found that the design of the Committees under the NHS might influence the rights of due process, the design of copayment in emergency services might influence the rights of health, the design of the Fee Schedule for Medical Services might Influence the rights of medical quality, and the system of NHS might not protect the rights of confidentiality. The concluding remark of this research is that the government shall not limit the rights of people unless the issue involved have been fully discussed and debated, and the limitation of rights should be checked by taking into the principle of law in order to adequately protect the health care rights of the people.