论新医改与中国卫生健康体系法治化——兼论《卫生健康基本法草案》修改

On the New Healthcare Reform and the Legalization of China’s Health System

卫生健康体系法治化是卫生健康事业良好治理的前提条件,应当是新医改在体制机制建设方面的基本目标和重要任务。基于健康权三维理论,卫生健康体系法治化是健康权所固有的健康相关各种民事、社会和政治权利要素的内在要求,是良好卫生健康体系的基本特征。以外国的实践为例,文章阐述卫生健康体系法治化的内涵、法治化运作的特征,以及中国卫生健康体系法治化的必要性,对于中国新医改及其立法的实益。为了实现中国卫生健康体系法治化,修改《卫生健康基本法草案》,应当着力处理好“目的与措施”的关系问题,解决好全面尊重和保障健康权问题。为此,建议确认健康决策参与权、组建患者组织权和社会权利救济权等为公民健康权基本要素,承认患者组织等健康相关社会组织的合法性、正当性,专章明确其建构、法律地位、运行和活动方式,为建设中国卫生健康体系法治监管,落实卫生健康体系社会共建共治共享提供必要条件。

The legalization of health system is a prerequisite for good governance of health care and it should be the basic goal and important task of the new healthcare reform in the construction of healthcare system and mechanism. Based on the three-dimensional theory of the right to health, the legalization of the health system is the inherent requirement of all kinds of civil, social and political elements related to the right to health and it is the basic feature of the good health system. Taking the practice of foreign countries as an example, this paper expounds the connotation of legalization of health system, the characteristics of legalization operation, the necessity of legalization of health system in China and its benefits to the new healthcare reform and legislation in China. In order to realize the legalization of China’s health system, the amendment of the Basic Law of China’s Health System (Draft) should focus on dealing with the relationship between “objectives and measures” and solving the problem of comprehensive respect for and protection of the right to health. Therefore, it is suggested that the right to participate in health decision-making, the right to form patients organizations and the right to obtain social relief for citizens should be recognized as the basic elements of citizens’ right to health. The legality and legitimacy of health-related social organizations, such as patient organizations, should be recognized and their construction, legal status, operation and activities should be clearly defined so as to provide the necessary conditions for the construction of the legal supervision of the health system in China and the implementation of the social co-construction, co-governance and sharing of the health system.