Case
A Chinese medicine outpatient department conducted a free consultation in a nearby shopping mall, during which the Chinese medicine physician Wang Mou consulted and diagnosed the elderly patient Li Mou, but did not charge any fees. Subsequently, Wang guided Li to the traditional Chinese medicine outpatient department for treatment and collected the treatment fee. Wang's children suspected that there was fraud in the diagnosis and treatment of the Chinese medicine outpatient department, and reported the outpatient department to the local health supervision office.
After investigation and evidence collection, the law enforcement personnel believe that there is no illegal situation in the diagnosis and treatment behavior of the outpatient department, but the free medical behavior without filing is an illegal practice of medicine and should be punished according to law.
01
What laws and regulations should be complied with for free clinics?
According to the relevant provisions of the Notice of the Ministry of Health on organizing the filing management of free medical activities (Wei Yi Fa [2001] No. 365), free clinics are non-commercial social welfare activities that provide medical, preventive, health care and other consulting services, which play a positive and important role in disease prevention and control, publicity of health knowledge, popularization of health education, and health support for farmers, and are specific actions for medical personnel to practice the purpose of serving the people wholeheartedly.
In order to ensure the interests of the masses and prevent the occurrence of illegal medical practice, deception of the masses, and fraud of money in the name of free clinics, according to the above notice and the Notice of the State Administration for Industry and Commerce, the Ministry of Health and the State Administration of Traditional Chinese Medicine on Regulating Medical Advertising Activities and Strengthening the Supervision of Medical Advertising (Industry and Commerce Guangzi [2003] No. 7), the organization of free clinics mainly has the following requirements:
First, in principle, the free clinic organization unit should organize the medical personnel in the region to hold free clinics within the scope of the region, and go to the health administrative department at or above the county level where the free clinic is carried out on the 15th day before the free clinic activity is carried out; when organizing the free clinic across counties, cities or provinces, the organization unit shall file a record with the corresponding health administrative department of its location and the location of the free clinic 15-30 days before the free clinic is carried out.
Second, the filing materials submitted by the free clinic organization unit include: a description of the free clinic situation, a letter of commitment to responsibility, a copy of the "Medical Institution Practice License", and the consent certificate of the medical institution where the medical staff participating in the free clinic are located.
Third, if a free clinic is carried out in a public place, it is also necessary to provide a consent form from the urban management and other departments.
Fourth, medical institutions publish advertisements containing free medical content, and only after filing can they apply for the "Medical Advertisement Certificate" procedure.
02
Which free clinics may constitute illegal medical practice
There are two main situations in which free medical activities may constitute illegal medical practice:
First, the free clinicians themselves do not have relevant qualification certificates such as the Physician Practice Certificate and the Medical Institution Practice License. For example, some street doctors carry out medical activities in the name of free clinics; some health care products or medical device companies have not obtained the "Medical Institution Practice License", but provide free physical examinations for others in the name of free clinics, and take the opportunity to sell medical products, health care products, etc.
The second is to carry out free medical activities without the filing of the health administrative department, or to carry out free medical activities beyond the time and place of the free medical treatment for the record. According to the Notice of the Ministry of Health on organizing free medical activities for the record, such acts are characterized as illegal medical practice, and the health administrative department should immediately instruct the free medical organization units to stop free clinics, and pursue responsibility in accordance with relevant laws and regulations, and seriously deal with relevant institutions and personnel.
Some local regulations and normative documents also have detailed provisions on the situation in which free medical treatment constitutes illegal medical practice. For example, the Measures for the Administration of the Filing of Free Medical Activities in Beijing stipulate that the conduct of free medical activities in a medical institution with a registered practice address outside Beijing municipality shall be punished in accordance with relevant laws, regulations and rules.
03
How to determine the penalty for illegal medical practice
The penalties for illegal medical practice are stipulated in many laws and regulations, so they involve conflicts of laws and the application of laws.
Article 99 of the Law of the People's Republic of China on Basic Medical Care and Health Promotion and Article 44 of the Regulations on the Administration of Medical Institutions both stipulate penalties for the illegal act of "opening a medical institution to practice medicine without approval or non-doctors practicing medicine".
First of all, according to the principle of the application of law in which the higher-level law takes precedence over the lower-level law, when there is a conflict of laws between the Basic Medical Care and Health Promotion Law and the Regulations on the Administration of Medical Institutions, the former should be applied in priority, and the relevant contents of the Regulations on the Administration of Medical Institutions are invalid.
Second, in the case of conflicts between the Basic Medical Care and Health Promotion Law and the Law of the People's Republic of China on Practicing Physicians, the new law should be applied to the superiority of the old law, that is, the provisions of the former should be applied. The Medical Practitioner Law of the People's Republic of China, which will come into effect on March 1, 2022, no longer provides for penalties for "opening a medical institution to practice medicine without approval". Judging from the content of the law, the Basic Medical Care and Health Promotion Law punishes the illegal medical practice of institutions, and the "Physician Law" punishes the illegal practice of medical behavior, which can be applied separately to illegal situations, and solves the problem of conflict of laws for illegal medical practice.
In addition to the above-mentioned issues of application of law, there are also problems in the determination of illegal gains. Because free clinics are generally free of charge, if illegal free clinics do not produce illegal gains, how to calculate the amount of penalties is controversial in the practice of health supervision.
Although there is no clear provision in the law, according to the principle of proportionality in administrative law and the requirement of proportional punishment, if the illegal income is less than 10,000 yuan, it is calculated according to 10,000 yuan", and the minimum fine of 5 times or 2 times is imposed according to the Basic Medical Care and Health Promotion Law or the "Physician Law", which still needs to be further clarified by the law.
Text: Sun Mingli, Li Heng, Research Center for Public Health Governance, East China University of Political Science and Law
Editor: Yu Mengfei Xiao Wei
Review: Xu Bingnan Yan Gong
【Source: Health News】