Working hours for doctors employed under civil law contracts. Is the MZ planning any changes?

In 2023. The Ombudsman took a close look at the results of the Supreme Audit Office's audit "Functioning of district hospitals." It referred in particular to irregularities involving the excessively long duration of health services provided by doctors employed under civil law contracts.

In the Ombudsman's opinion, the need to regulate the working time of all physicians stems from the constitutional principle of state supervision of working conditions, and, in addition, from the right of every citizen to health protection (Articles 24 and 68(1) of the Constitution). Determination of the minimum uninterrupted rest and exceptions to this principle - limited only to employees - also raises doubts about compliance with the right to days off and annual paid leave (Article 66(2) of the Constitution).

At present, the only recommendation remains for managers to plan for staff on-call duties in a way that ensures adequate rest time, regardless of the form of employment. However, managers of non-business health care entities are only accountable to their constituent entities.

May 25, 2023. The Ombudsman asked the Minister of Health for his position on the possibility of taking appropriate legislative action. In a response dated July 4, 2023. The Ministry of Health wrote that there is currently no work on introducing legislation to regulate the

Now ZRPO writes to Minister Izabela Leszczyna that it seems that the previously presented problem is valid. In the Information on the results of the audit "Commissioning of medical services by public hospitals", the NIK audit found numerous irregularities. The organization of the provision of health services in 9 of the 12 medical entities did not ensure the health safety of patients. 134 cases were found in which 30 doctors and three paramedics were on duty for more than 40 hours without a break. In extreme cases, doctors were on duty continuously for 124 hours (five days).

Response from Mark Kos, Undersecretary of State at the Ministry of Foreign Affairs

The applicable laws, including in particular the Act of April 15, 2011 on medical activity (Journal of Laws of 2023, item 991, as amended), as well as the Act of December 5, 1996 on the professions of physician and dentist (Journal of Laws of 2023, item 1516, as amended), allow the employment of physicians and other medical professionals in a medical entity, both on the basis of employment contracts and civil law contracts. The legislator did not indicate the preferred form of employment, hence, in accordance with the principle of freedom of choice and practice of profession and the principle of freedom of contract guaranteed by the Polish Constitution, the decision and choice not only with regard to the place of work, but also the basis of employment was left to the will of the parties to the legal relationship in question. The provision of Article 5 of the Law of April 15, 2011 on medical activity stipulates that a physician may practice his profession within the scope of medical activity in the form of sole proprietorship as an individual medical practice, in the form of a civil partnership, general partnership or partnership as a group medical practice. Thus, practicing a doctor in a medical entity is possible on the basis of both an employment relationship and a civil law contract.

In addition, a doctor may practice his profession without being in a legal relationship with a medical entity, e.g. when, as an entrepreneur, he runs a medical practice and provides health care services to patients who apply to him. Such regulation of the rules of practice of a doctor, but also, for example, a nurse, midwife, physiotherapist, results from the recognition of these professions as free professions of public trust. From the fact of exercising a profession of public trust derives, in particular, the obligation to be guided in its exercise by the principles of ethics, ordering the doctor to be guided primarily by the good of the patient and care for the good of the profession understood as an action that does not undermine confidence in the medical profession.

At the same time, it should be emphasized that the responsibility for shaping the legal relations linking the hospital with doctors and other medical practitioners in a way that will allow the patient's welfare to be duly taken care of lies with the head of the medical entity. A civil law contract concluded by the hospital director with a doctor or other medical practitioner, the subject of which is the provision of health care services, should ensure not only the proper functioning of the treatment entity, but above all guarantee the safety of both patients and employed personnel. An overworked doctor undoubtedly does not warrant the provision of proper patient care.

However, also a doctor, nurse, midwife, physiotherapist (practicing the so-called free profession included in the group of professions of public trust), whose statement of intent is as important when concluding a civil law contract as the statement of intent of the hospital manager, should take into account the subsequent possibility of actually implementing the provisions of the contract in accordance with the rules of professional practice and professional deontology provided by law. The Code of Medical Ethics, which applies to every doctor, indicates the welfare of the patient as the overriding principle of the practice of the profession and stipulates that a doctor is not exempted from compliance with this principle by administrative requirements, social pressures or market mechanisms.

With the above in mind, and referring to the issue of the excessive number of working hours of doctors, it should be stated that the reason for the above is the shortage of medical staff, which has been observed for years. It should be emphasized that the Ministry of Health is constantly taking measures to ensure an optimal number of doctors and dentists on the labor market. Detailed information in this regard was provided to the Ombudsman in the letter marked: DS.07.1.2023.PJ. The measures taken are aimed at minimizing the unfavorable demographic picture of the medical staff, which is one of the significant causes of excessive working hours of medical personnel, including doctors.

Currently, the Ministry of Health has no plans to undertake legislative work aimed at introducing legislation to regulate the working hours of medical professionals employed under civil law contracts.

Source: RPO