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Patients' Rights Law - the new MoH project

Country: 
Poland
Partner Institute: 
Institute of Public Health, Jagiellonian University Medical College, Krakow
Survey no: 
(16)2010
Author(s): 
Anna Mokrzycka
Health Policy Issues: 
Public Health, Political Context, Benefit Basket, Access, Responsiveness
Reform formerly reported in: 
Law on Patient Rights
Patient rights legislation: Tysiac v. Poland
Restructuring the Bureau for Patient Rights
Current Process Stages
Idea Pilot Policy Paper Legislation Implementation Evaluation Change
Implemented in this survey? no no no no no no yes

Abstract

The MoH presented the second package of health laws (the first one was vetoed by the President in 2008) including the Law on Patients´ Rights Project. It has been submitted to social consultations on 3rd of September and the deadline for sending feedback was 1st of October. The project has also been internally discussed by the Minister's Council with leadership of the Prime Minister. The impact of the change, announced by MoH as "revolutionary", is currently being criticized.

Recent developments

The Law on Patients´ Rights was included into the first package of the so called Health Laws, together with the Law on a Health Ombudsman. Both were passed in Parliament and, after a Presidential veto, finally signed in November 2008. From the beginning the idea has been widely accepted. The main purposes of the new legislation are:

  • Collection of all patient rights in one complex legal act

  • Strengthening of the patient's position as an autonomous partner in the health system relations

  • Creating a new extrajuridical procedure

  • Setting up the new post for an ombudsman who is responsible for patients' interests and rights

The legislation was based on the new concept of legal definitions and scope of patient's rights, as well as a means for their execution. In Poland the system for patients' complaints against doctors was mainly criticized for the fact that an examination was provided only, and exclusively, by the special medical courts under the control of medical chambers (there are two separate professionals chambers: one for nurses and midwifes, and one for medical doctors). The patient concerned could not turn to the medical court personally, he had to be officially represented by a plenipotentiary. This made the two parts of the procedure unequal - to the disadvantage of the patient. The state courts were only engaged in very few cases, the most serious and spectacular, under the proper procedural conditions. In case of a civil procedure a patient has to pay at the moment of his/her claim submission - otherwise the procedure cannot start. 

The need for the "codification" of patient´s rights has often been stressed by medical law experts, by the organization representing patients, and also by some medical professionals. Next to the patient´s position, rules collection and clarification, the new post for the health ombudsman assisting patients was established at the same time. He/she was expected to represent and defend patients´ interests within the new extra-judicial system as well.  

The process of patients´ rights was initiated by early regulation from 1991 - the Law on Health Institutions included a first list - but very soon developed in many different legal acts. This caused quite a big mess and disorientation on both sides, patients and health professionals. In 2004 the Institute for Patient's Rights and Health Education was established (together with the new systemic legislation concerning health care, following the Polish Constitutional Tribunal judgement on the infringement of the Constitution by the old Law on Health Insurance in NHF). The medical community as a whole was not really involved in this process and often avoided to state a clear opinion. Research proved as well that medical doctors and nurses were not aware of the specifics concerning their responsibility for following patients´ rights. The actual results of the ruling state courts (when the claim was presented) very rarely relied on patients´ rights. The courts simply did not evoke patient rights - and they did not stress the necessity of such rights observation. Courts - or rather the judges - relied mostly on the civil code provisions and implemented them for the subjective cases. At the same time the public, experts, patients and medical professionals representatives, as well as some politicians were convinced that the realization of the patients´ rights idea may positively influence and significantly improve the health care system. 

Taking into consideration that the systemic protection of patients´ rights was a fundamental standard in EU countries, and that WHO and the EC actively supported the issue in many initiatives, the idea of strengthening the patient´s position has also been developed in Poland since 2004 - unfortunately this was not followed by a proper legislation so far.

The picture of the patient's situation created after the first Patient's Rights List in 1991 and after the 2004 change can be summarized in the following points:

  • The law on health care units established only a list of doctors' (providers) obligations- in 1991 the list of Patient's Rights has been created as an opposite list (taking the particular obligation of a doctor as a base to define the opposite particular right of a patient: the obligation of a provider to inform a patient - the patient's right of being informed)
  • The parallel list was included into the Physicians' Code as a base for the ethical and professional responsibilities;
  • Patients´ rights were dispersed into the separate packages included in legislation concerning the particular medical profession, health care providers activity, National Health Fund (NHF) functioning, the Institute for Patient's Rights and Health Education activity, and others (on different levels);
  • Very weak position of a patient standing for his right in front of the medical court.

As a result, after a long and complicated legislative process, the Law on Patients´ Rights and on the Health Ombudsman post was accepted by Parliament and signed by the President in November 2008, and finally came into force in May 2009 (see the previous reports). This new legislation was called a patients´ rights codification. The important change was the introduction of the post of the Health Ombudsman. Very soon it became clear that the Ombudsman´s actual influence could not satisfy the expectations, due to the lack of independency (status not declared by legal norms in this respect) and provisions concerning the Prime Minister's discretion, and due to the undefined length of the Ombudsman´s term. Another reason may be the procedure´s deficiencies. Still, there were cases of patients who objected to a physician´s opinion. However, the final verdicts were left to commissions made up of physicians only - with no possibility for the patient to appeal (the same regards the Ombudsman possibility for action). The other controversial issue regarding the investigation focused on the provisions which allowed that the results can depend exclusively on the written medical documentations, which are prepared by physicians personally who were engaged in the investigation (such a solution is a direct infringement of the fundamental legal rule: nemo iudex in causa sua).

New legislation to improve patients' position

The MoH declared this autumn as the big change time for the health care system, mostly due to the governmental project of the systemic legislation package. The package includes, among the 12 other laws, the Law on Patients´ Rights and Health Ombudsman. The project, corresponding to the MoH declaration, focuses on the main failings of the procedure. The MoH announced that on the basis of the new legislation, patients will be allowed to claim damage compensation for medical malpractice outside the state civil court procedure as outlined in the previous paragraph. The maximum length of the procedure will not exceed seven months. The only way to claim the compensation under the binding legislation at the moment is to commence the civil court procedure in court - and to fulfill the requirements concerning payment for the lawsuit costs. The usual length of the procedure in such a case may even be a few years.

The project of the new law was announced at the beginning of September and was sent to internal (governmental) and external (social) consultations. The time for sending remarks and opinions expired on 1st of October. The project is currently being commented on by several gremiums - the approach to the MoH proposal has to be described as very critical.

The MoH named this particular legislation a "revolutionary change enabling patients to obtain compensation". In this respect the new bodies responsible for compensation have been established - the commissions for medical malpractice judgements (at the voivodship level) - and the new, shorter procedures guaranteeing fast compensation payment in case malpractice ascertainment. The procedures aiming at verification of medical malpractice will be organized similarly to the procedure concerning damage caused by medical treatment, based on the guilt evidence and identification of the medical procedures infringements or medical knowledge complaisance checking (art 71a.2 of the new Law Project).

Criticism from lawyers and academics

The lawyers and academics specialized in medical law claim that despite the spectacular announcement of this legal change by the MoH the new law does not provide any specific solutions concerning the main problems. They underline that the main difficulties are connected to the issues of accuracy of medical documentation and reliability, and to the credibility of the medical experts´ opinions. They also point out that the real benefits for patients in the sphere of patients´ rights observation and enforcement are connected to the simple and easily performed rules. In this respect the Swedish solution is being given as an example (the main difference lies in the fundamental criterion of the procedure: the only one circumstance that has to be proven is the question of whether the damage could have been avoided - not the medical malpractice performance).

The new solutions for the compensation payment are provided in the proposed legislation - assuming that the commission determined the malpractice - based on the competencies transfer to the insurance institution. The project states the following maximum financial levels for such compensations:

  • Compensation in case of a patient's death - max. 300 000 Pln (75 000 Euros);

  • Compensation for medical malpractices with effects other than the patient's death - max. 100 000 Pln (25 000 Euros);

  • The maximum level for the invalidity pension (monthly) is 3000 Pln (750 Euros)

The project does not provide any minimum payments. Such circumstances give the insurance companies quite large competencies to save money rather than to compensate the damage adequate to patients´ expectations. Moreover, patients are not secured with any possibility for an appellation procedure concerning the insurance company compensation proposal, and (!) in case they do not accept it - they have to pay the costs of the commission's procedure (art 71h.3 of the project). When patients accept the proposal (art.71h.4 of the project) they also have to resign from the right to judicial claim in the state court (provided by the civil code in art 448!).

 The main criticism concerning the described project concerns the following:

  • The projected law does not stipulate any criteria for the proper calculation of compensation payments (like a defined algorithm);

  • The competencies in this sphere should be given to the judging commission itself;

  • In case a patient is not satisfied with the compensation proposal (does not agree on the proposed sum) he/she should still have the possibility to claim compensation within the state administrative court - the proposed solution may be even perceived as unconstitutional (as far as it forces a patient to resign from the court procedure on the ground of the art. 448 of the civil code - infringing the constitution art 45.1);
  • In any case a patient should not be charged for the commission procedure costs.

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Characteristics of this policy

Degree of Innovation traditional neutral innovative
Degree of Controversy consensual controversial highly controversial
Structural or Systemic Impact marginal rather fundamental fundamental
Public Visibility very low high very high
Transferability strongly system-dependent system-dependent system-neutral
current current   previous previous

Patients´ rights practice still shows that there are many questions to be solved. The proposed project from patients' and systemic points of view does not constitute a good solution (see the above presented arguments).   

Purpose and process analysis

Current Process Stages

Idea Pilot Policy Paper Legislation Implementation Evaluation Change
Implemented in this survey? no no no no no no yes

Initiators of idea/main actors

  • Government: Passing the Law on Patients? Rights and setting up the Health Ombudsman Office in 2004, the government showed its interest in the idea of improving the h.c. system. The new project, however, cannot be recognized as a good and expected change.
  • Parliament: The political parties supported the idea initiative. Regarding this project the opposition underlines its weakness and imperfections and does not accept the proposed solutions, however, officially strongly supports the idea of patient rights protection.
  • Providers: At first, providers were against the new regulation (no official protests). Now they keep aside but often critisize the ideas focusing on strengthening patients´ position claiming that they are not paid adequately (cannot afford a proper insurance).
  • Patients, Consumers: They are not aware of the new project yet - only some of the representing institutions expressed opinions on the issue and criticized the project. In the near future the Institute for Patients? Rights will surely be involved in the issue.
  • Scientific Community: There are only some, though very few, opinions presented from the scientific community side.
  • Media: At the moment media are rather not involved in the issue - the project is quite new and they are waiting for the different gremiums´ opinions. Mostly they repeat the MoH´s official statements, but soon, for sure, they will show interest.

Stakeholder positions

From the time of the very first legislative changes concerning patients´ rights the governement showed its interest in the idea of improving the patient´s situation within the health care system - and expressed strong believe that such change may influence the whole system positively. After passing the Law on Patients' Rights and setting up the Health Ombudsman Office in 2004, the subsequent changes were introduced in 2008. Now, the MoH included the issue into its so-called "revolutionary" package of legislation, including the 12 systemic laws concerning health care. The new project of the Law on Patients´ Rights was announced as perfect, complex and responsive to the needs. However, the first comments - after social consultancies - showed that the Law is far from being a good example of change. The MoH holds the leadership role in the new legislation project, but still the issue of patients´ rights is simply included into the whole package of health care legislation, which is treated by the government as proof for a deep reform beginning. The MoH wants to show its activity in the sphere of health system improvement, due to the actual crisis within the system.

The political parties supported the idea of the initiative, but the situation has changed in case of the proposed novelisation. The opposition is strongly against this particular project and criticizes its provisions concerning the procedures for patients´ compensation. The idea of patients´ rights protection is still supported by the opposition, and the main argument against the project focuses on the fact that it will not improve the situation.

Providers were afraid of any new regulation concerning patients´ rights protection, but on the other hand they never officially protested, and now nothing has changed in this respect. They neither criticize the idea nor support the new project and mostly keep aside. However, from time to time they criticize the ideas focusing on strengthening the patient´s position, claiming that they are not paid adequately and cannot afford a proper insurance.

Patients are not aware of the new project yet - only some of the patient representing institutions expressed opinions on the issue and criticized the project. In the near future the Institute for Patients' Rights will surely be involved in popularising the issue.

Very few opinions are expressed by the scientific community at the moment, but some well known "names" among medical academics and lawyers, who are specialized in medical law, criticized the new project. They emphasize that the provisions concerning the compensation procedure are formulated wrongly, and the procedures are in fact not protecting patients´ rights. The opinions of the leaders in the sphere of medical law and health insurance law - Prof. M. Nestorowicz and Prof. J. Joñczyk - will have a major impact on the whole scientific community, as well as other public health specialists - but, unfortunately, they will not influence this policy directly and significantly.

Actors and positions

Description of actors and their positions
Government
MoHvery supportivevery supportive strongly opposed
Prime Ministervery supportivevery supportive strongly opposed
Minister of Financevery supportiveneutral strongly opposed
Parliament
Civic Platformvery supportivevery supportive strongly opposed
Agricultural Partyvery supportivevery supportive strongly opposed
Law and Justice (opposition)very supportiveopposed strongly opposed
Social Democratsvery supportivesupportive strongly opposed
Providers
Medical Chambersvery supportiveneutral strongly opposed
Medical Trade Unionsvery supportiveopposed strongly opposed
Research leadersvery supportiveopposed strongly opposed
Patients, Consumers
Institute for Patients´ Rightsvery supportiveneutral strongly opposed
Different organizations representing patientsvery supportiveneutral strongly opposed
Scientific Community
Medical communityvery supportiveopposed strongly opposed
Lawyers (individuals)very supportiveopposed strongly opposed
Other researchers (public health)very supportiveopposed strongly opposed
Media
Public TVvery supportiveneutral strongly opposed
Private TVvery supportiveneutral strongly opposed
Pressvery supportiveneutral strongly opposed
current current   previous previous

Influences in policy making and legislation

The project was announced as a new proposal for the legislative solution concerning  the patients´ rights protection issue. It is just at the social consultation stage and it is the MoH proposal.

Legislative outcome

n/a

Actors and influence

Description of actors and their influence

Government
MoHvery strongstrong none
Prime Ministervery strongvery strong none
Minister of Financevery strongneutral none
Parliament
Civic Platformvery strongvery strong none
Agricultural Partyvery strongvery strong none
Law and Justice (opposition)very strongweak none
Social Democratsvery strongweak none
Providers
Medical Chambersvery strongneutral none
Medical Trade Unionsvery strongstrong none
Research leadersvery strongneutral none
Patients, Consumers
Institute for Patients´ Rightsvery strongstrong none
Different organizations representing patientsvery strongstrong none
Scientific Community
Medical communityvery strongneutral none
Lawyers (individuals)very strongneutral none
Other researchers (public health)very strongneutral none
Media
Public TVvery strongneutral none
Private TVvery strongneutral none
Pressvery strongneutral none
current current   previous previous
MoHPrime Minister, Civic Platform, Agricultural PartySocial DemocratsMinister of Finance, Medical Chambers, Public TV, Private TV, PressInstitute for Patients´ Rights, Different organizations representing patientsLaw and Justice (opposition)Research leaders, Medical community, Lawyers (individuals), Other  researchers (public health)Medical Trade Unions

Positions and Influences at a glance

Graphical actors vs. influence map representing the above actors vs. influences table.

Adoption and implementation

First of all, Parliament will have to work on this idea and pass the new legislation. At the moment it is difficult to foresee the possible developments.

Monitoring and evaluation

Under the binding legislation the Ombudsman is responsible for and obliged to report to the government annually on initiatives and activities undertaken in the sphere of patients' rights. The government submits the report to Parliament (see the report on the Foundation of the Ombudsman´s Office, 13th round). Also, the main patient organizations and the media were involved in the process of the Ombudsman activities and patients' rights observation. The project of the new Law on Patients´ Rights was submitted to the social consultation with tables providing data concerning the actual situation in the sphere of patients´ rights. The records of cases reported to courts from 2001 until 2009 show the stable increase of such cases.

Expected outcome

It is too early to evaluate and judge performance and social efficiency of the new solutions proposed in the project - it will depend on the changes introduced by Parliament to the project in the future and on the final shape of the proposed Law.

Impact of this policy

Quality of Health Care Services marginal rather fundamental fundamental
Level of Equity system less equitable system more equitable system more equitable
Cost Efficiency very low neutral very high
current current   previous previous

The impact depends on the future of the project: The probability that it will be accepted in the proposed version is difficult to assess at the moment. 

References

Sources of Information

  • The Law on Patient's Rights MoH project text available on:  www.mz.gov.pl/wwwfiles/ma_struktura/docs/ustawa_rzecznik_03092010.pdf
  • Law of 6 November 2008 on Patients' Rights and Patients' Rights Ombudsman, The Law Gazette 2009, No 52, clause 417, No 76, clause 641
  • Law of 6 November 2008 on Patients' Rights and Patients' Rights Ombudsman, The Law Gazette 2009, No 52, item 417, No 76, item 641
  • Law of 24 April 2009 introducing the Law of 6 November 2008 on Patients' Rights and Patients' Rights Ombudsman, the Law on Accreditation in Health Care, the Law on Consultants in Health Care, The Law Gazette 2009, No 76, item 64
  • Comments and opinions (social consultancies) available at: www.mz.gov.pl 

Reform formerly reported in

Law on Patient Rights
Process Stages: Legislation
Patient rights legislation: Tysiac v. Poland
Process Stages: Implementation
Restructuring the Bureau for Patient Rights
Process Stages: Implementation

Author/s and/or contributors to this survey

Anna Mokrzycka

Lecturer and researcher at the Health Policy and Management Department, Institute of Public Health, Jagiellonian University. Research on social protection system, disability, health insurance. Phd in Social Protection and Labour Law.

Suggested citation for this online article

Anna Mokrzycka, Cezary Wlodarczyk. "Patients' Rights Law - the new MoH project". Health Policy Monitor, October 2010. Available at http://www.hpm.org/survey/pl/a16/3