Ombudsman writes to the Supreme Medical Council

• Today, a doctor legally acquitted of a charge in a disciplinary proceeding cannot get reimbursed for his defense attorney's fees
• The Ombudsman, who has been dealing with this problem for years, has applied to the Supreme Medical Council

The ROP continues to receive requests in connection with the well-established jurisprudential practice of the professional bodies of doctors, which assume that a doctor who has been legally acquitted in a professional liability case should not be reimbursed for the costs of establishing a single defense attorney of choice. 

In 2017. The then Ombudsman addressed the issue to the President of the Supreme Medical Council, Maciej Hamankiewicz. In view of his unequivocal position. The Ombudsman has repeatedly asked successive health ministers to consider taking legislative action or initiating an appropriate dialogue with the NRL.

In 2018. The Minister of Health indicated that there is no obstacle to a legally acquitted doctor being able to exercise the right to reimbursement of expenses related to the participation of a defense attorney of choice under the rules set forth in Article 632(2) of the Code of Criminal Procedure, which applies accordingly. 

Accordingly, the Ministry considered that in view of the unambiguous content of the legislation, it was not necessary to undertake legislative work. This position was maintained in a letter to the Ombudsman dated January 23, 2023. Bearing in mind the independence of the disciplinary judiciary of the professional self-government, the Minister of Health declined to issue a communication regarding the appropriate application of the provisions of the Code of Criminal Procedure to the reimbursement of such expenses.

From the letters received by the Ombudsman, it appears that the practice of medical courts in reimbursing the costs of establishing a single defense attorney of choice has not changed.

In the Ombudsman's opinion, the interpretation of these courts is irreconcilable with constitutional standards, particularly the right to defense (Article 42(2) of the Polish Constitution), the provisions of the Law on Chambers of Physicians, as well as judicial and tribunal case law.

Therefore, the ROP draws the attention of the NRL president to arguments for changing the practice so that a doctor who has been acquitted as a result of a disciplinary proceeding can seek reimbursement for the costs of establishing a single defense attorney in the case. He presents extensive legal arguments.

Marcin Wiącek reminds that Article 42(2) of the Constitution of the Republic of Poland stipulates that everyone against whom criminal proceedings are conducted has the right to defense in all stages of the proceedings. He may, in particular, choose a defense counsel or, under the rules set forth by law, use a defense counsel ex officio. 

The function of disciplinary proceedings is significantly different from criminal proceedings. The main function of these proceedings is to defend the honor and welfare of the profession. Nevertheless, it must be emphasized that from the principle of a democratic state of law (Article 2 of the Constitution of the Republic of Poland) should be derived the application, including in disciplinary proceedings, of the guarantees established in Chapter II of the Constitution. 

The transfer of institutions derived from criminal proceedings to disciplinary proceedings is intended to serve a protective purpose. The legislator, taking into account the repressive nature of disciplinary proceedings, found it reasonable to reach for those institutions of the Code of Criminal Procedure that create the possibility of optimal protection of the rights and freedoms of the accused.

RPO Marcin Wiącek is presenting these comments to NRL President Lukasz Jankowski, asking him to take action to ensure effective protection of human rights for doctors. 

Source: RPO