長期照顧服務之消費者保護法適用性

The Applicability of Consumer Protection Act to Long-Term Care Services

長期照顧服務法自106年實施，在長照2.0架構下推動長照服務給付支付與特約機制，隨後長照服務責任相關糾紛亦紛沓而至。雖然長照服務責任之討論尚處於濫觴階段，但有關醫療服務風險之分配則已累積豐富論理基礎。醫療服務與長照服務具相似性，如高度公益性與市場管制、服務提供過程危險性及整體法律經濟效益考量等。本文爬梳醫療法訂定特殊服務責任之立法脈絡，期對長照服務服務責任法制建構，提出具體建議。其次，檢視近年法院有關長照服務適用消費者保護法無過失責任之判決可知：(1)長照服務原則上適用消費者保護法無過失責任，但有關消費關係之涵攝仍未明確；(2)尚未建立穩定的因果關係解釋標準；(3)逐漸充實長照服務「當時科技或專業水準可合理期待安全性」之內涵，如納入人性尊嚴保障。為改善長照服務法規範體系可預見性、建立社會最大效益的風險分擔結構，本文建議發展類型化長照服務責任適用及長照服務常規，且需重新檢視國家於長照服務體系之角色與定位。

Long-Term Care Services Act has been enforced since 2017. At the same year, Long-Term Care Plan 2.0 which was mainly constructed by the constitution foundation of long-term care services and the administrative contract system of long-term care services providers was launched. At the same time, there also has been a growing number of disputes related to longterm care services. There are some similar characteristics between long-term care services and medical services, including a close connection with public interests, managed by a regulated market, accompanying risks faced during services delivering, and the legal economics concerns. Through reviewing the history of narrowing the legal liability of medical services, this article tries to give some suggestions for the establishment of long-term care services liability in the future. Secondly, based on cases study and analysis of the court judgements, this article concludes that: (1) the courts have reached a rough consensus to impose strict liability to long-term care services, yet in the absence of any persuasive inference; (2) the court judgements haven’t developed a stable causal reasoning; and (3) human dignity protection has been applied to some judgements. Last, in order to improve the intelligibility and legal foreseeability of the legal liability systems and to build the best public interest-directed risk allocation structure, this article provides some possible approaches to categorify the legal liability of long-term care services and to rethink the State position in long-term care services providing system.