Study on the right of dispensing attributed to physicians or pharmacists from the legal system

• Main Authors: Wan-Nan Yu, 余萬能
• Other Authors: none
• Format: Others
• Language: zh-TW
• Published: 2005
• Online Access: http://ndltd.ncl.edu.tw/handle/01563434494608396354

碩士 === 東吳大學 === 法律學系 === 93 === The process of medical care to cure disease can be divided into two parts. One is the diagnosis process, and the other is treatment process. The treatment process includes the use of drugs, prescribing and dispensing. As a tradition, physicians take the responsibility and implement both the medical and pharmaceutical professions. However, the system of medical treatment and dispensing is separated based on professional specialization due to the demand of quality assurance in medical treatment by patients. Separation of medical treatment and dispensing is defined as that physicians are responsible for diagnosing and prescribing for patient, while the pharmacists are specialized for dispensing drugs according to the prescriptions drawing up by the physicians. The purpose of separation of prescribing and dispensing system is to prevent medical treatment error and medication error, so that a patient-safety- oriented medical and dispensing practice can be established. It emphasizes the mechanism of “ check and balance “, to examine the duplicated medication, drug-interaction, and side effects, so it can safeguard the use of drugs by the public, and raise the public’s awareness of taking medicine, and ensure the right to choose the dispensing places (pharmacy). The separation of medical treatment and pharmacy has been practiced in many countries to prevent the prescribers from getting profits through drug supplies, and to avoid conflict of interest. This system is also practiced to clarify the liability to pharmacists and doctors, and promotes two-way communication of physicians and pharmacists. The two professionals can provide the information about drug safety for patients, and thus lead to the improvement of the quality of medical therapy. Drugs have tremendous profit due to the development of therapeutic process and the marketing skills. The expenditure of medicine is approximately 100 billion NTD of interest per year. Therefore, the right of dispensing attributed to physicians or pharmacists has become a controversial issue for a long time. Base on the highly professional specialization of medication and the absolutely asymmetry of professional knowledge to the patients, the laws and regulations of the medical and pharmaceutical affairs has amended, the article 102Ⅱof the Pharmaceutical Affairs Act to restrict the dispensing of the prescription by physicians to protect consumers’ right. The amended article 102Ⅱof the Pharmaceutical Affairs Act has taken into effect in 1997. The amendment stated that the physicians must prescribe a prescription and deliver the prescription to the patients, and the patients have the right to take the prescription for dispensing in pharmacies. The amended article makes the entanglement of drug interest between physicians and pharmacists even worse, and subsequently lead to file legal suit in many cases. This study attempts to elucidate the issue of “separation of prescribing and dispensing” by comparison and analysis from the angle of current regulations, comprehension of the legal history, and the stands of consumer protection, through the method of sociological jurisprudence and legal system. Under current legal system, the professional between physician and pharmacist is different in statutory qualification, subject of examination, the content of professional work, and even the possession of exclusivity. The definition of medical conduct is different from dispensing conduct by regulation and academics. The requirement of professional and qualification of personnel is different as well. People claim the high quality of medical services is a fundamental social right. Prescription is the proprietary rights of patient showing the respect of the patient’s right to choose the dispensing pharmacy. Therefore, dispensing is not an inherent right; it is just a way of service. Dispensing only involves in ability and liability, and is the obligation and responsibility of pharmacist. It is derived from delicate specialization of medical care. Dispensing is an important leverage in medical care system to assure drug safety of the public. Separation of medical treatment and dispensing is a system combined two specialized profession and shares the responsibility per se, which in turn conforms to the social expectation. The essence of the guarantee of the social beneficiary is to respect the other’s right when anyone claims their own rights. From the viewpoints of reasonable utilization of the resources of the health insurance, or the establishment of the separation of medical treatment and dispensing based on specialization, the government promotes its policy on the separation of medical treatment and dispensing to build up a high quality medical services and to ensure the publics’ health which does not violate the original intention of the constitutional civil right in view of the proportional principle of the law. The separation system of the medical treatment and dispensing based on specialization has been established. However, there are many misinterpretation of the content of the article of the laws. In order to resolve the dispute between the physicians and the pharmacists, this study is to propose a drafting amendment of the content of Physician Act, Pharmacist Act, Pharmaceutical Affairs Act and Medical Affairs Act whereabouts the controversies. It is anticipated to provide an insight for government’s reference in the implementation of legal affairs.