論臺灣醫師適用「勞動基準法」之挑戰與法制發展

The Challenges and Legal Development of Taiwanese Physicians’ Appliance of the “Labor Standards Act”

本文探討醫師是否適用「勞動基準法」，以保障其就業之職場環境安全與提供病人高醫療品質，進而促進國民之健康。若醫師適用「勞動基準法」已達共識，對於醫師適用「勞動基準法」之法制發展，本文認為醫師與會計師、律師雖皆屬專業人員，但醫院與診所有整合醫療服務之考量，似無僅以受雇醫師或僅以西醫師納人「勞動基準法」之必要。此外，由於臨床醫師人力短缺，主治醫師與住院醫師之業務內容，尤其值班與否，區別性趨於模糊，階段性僅規範住院醫師之考量似可放寬至醫師全體。有鑒於臨床醫師人力短缺，針對「勞動基準法」第84-1條責任制之適用時機，究係採護理人員與會計師之二階段模式？或採律師之一階段模式？端視醫師、醫療機構、病人與主管機關之問是否針對醫師替代人力來源凝聚共識而定。觀察護理二階段模式經驗，歷經14年方才由「勞動基準法」第84-1條責任制修改為適用「勞動基準法」基本原則。醫師人力養成教育時問長，培育期更久，無論適用二階段模式或一階段模式，可預見由適用責任制到排除適用責任制之因應調適期恐會更長。故，關於專業分級以及醫師替代人力來源等議題之凝聚共識實在刻不容緩。

This article discusses whether physicians are applicable to the “Labor Standards Act” or not. Not only physicians’ employment workplace environmental safety is ensured, but also provides patients’ high quality of care and promotes people’s health. If the consensus is that physicians should be applied into the “Labor Standards Act”, in terms of legal development of applying physicians to the “Labor Standards Act”, this article considers that although physicians, accountants, and lawyers are all professionals, but hospitals and clinics are considered to be integrated into one medical service. Thus, it seems not necessary to apply only employed physicians or western physicians into the “Labor Standards Act”. Besides, due to clinical physician manpower shortage, the working contents between an attending physician and a resident physician especially on duty or not is getting vague. The stage consideration of applying only resident physicians might change to cover all physicians. Due to clinical physician manpower shortage, in terms of the applicable timing of the Article 84-1 of the “Labor Standards Act”, should physicians apply the two stages model applied to nurses and accountants or the one stage model applied to lawyers? This depends on whether there is consensus on alternative sources of physician manpower decided between physicians, medical institutions, patients, and the competent authorities. Observing experiences of the two stages model applied to nurses, it has taken 14 years from changing Article 84-1 the liability system of the “Labor Standards Act” to basic principles of the “Labor Standards Act”. It takes a long time to educate and train physician manpower. No matter the two stages model or the one stage model is applied, it is predictable that the adjustment period will take longer from applying to excluding the liability system. Therefore, the consensus building of professional classification and alternative sources of physician manpower seem unable to wait.