Patients' rights and the Patients' Ombudsman
In November 2008, the Act on Patients' Rights and Patients' Ombudsman was passed. This was a response to a long-standing discussion resulting in the need to institutionalise patients' rights, to create a body representing the patient - upholding his or her rights.
Until then, there was only a Patients' Rights Office under the Minister of Health.
The enactment of the Act was therefore a first, but important step towards serious institutional support for patients and the regulation of their rights. In the middle of 2009, the law came into force, and thus the Patient Ombudsman and the catalogue of patient rights were established.
In October 2009, the first Patient Ombudsman was appointed - Krystyna Barbara Kozłowska, who served as Ombudsman until 2017. Since 30 October 2017, Bartlomiej Chmielowiec has held the position.
The health care system in Poland requires constant analysis and improvement, as well as a consistently implemented, long-term development strategy. It is no different with patient rights. Since its entry into force, the Act on Patients' Rights and Patients' Rights Ombudsman has been amended several times. Practice in applying the Act has shown which areas and issues relating to the protection of patient rights and patient safety require the most attention or further clarification.
Many ideas and proposals for change have already appeared in the public space to more effectively guarantee patient safety and rights in Poland.
In February this year, however, an important declaration was made by the Ministry of Health, showing its willingness to carry out broad changes to the Act on Patients' Rights and Patients' Ombudsman as early as 2021. This is very good news, showing that space is being created for beneficial changes.
Without prejudging the final shape of the law - it is already possible to list a number of changes that appear to be the most important, in the most significant way affecting the observance of patients' rights.
Possibility to consult another doctor
This is a demand strongly emphasised by patient organisations. As a general rule, a doctor will not be able to refuse a patient to consult another doctor.
An important part of the patient's right to health services is the right to request that the doctor providing them consult another doctor or convene a medical consultation (Article 6(3) of the Act). Currently, a doctor may refuse such a request if he or she considers it to be inexpedient. There has been extensive discussion with patient organisations about this solution. They pointed out that, in practice, patients find it very difficult to exercise this right. However, it is very important, in supporting the patient in the decision-making process and helping them to give informed consent for treatment. Therefore, the intention of the proposed amendments is to limit the discretionary nature of the doctor's decision and to specify that the exercise of the above-mentioned right may be refused only in exceptional cases. There would also be an obligation to justify a refusal to consult another doctor in the medical records.
The right to report adverse reactions
According to the proposed changes, if an adverse drug reaction is reported to a health professional, he or she would be obliged to record it in the medical records, regardless of whether he or she so qualifies the event. It is about the mere fact of reporting and recording the circumstances. Again, the proposal for change stems from an initiative by patient organisations.
Superintendent and medical representative
Another postulated extension of the patient's right to consent to health services is the introduction of a medical guardian, appointed by the court in cases where the patient is incapable of giving informed consent, has no legal representative or has not appointed a medical representative.
The provision of the first health service would be by court order and further treatment (if treatment is to be continued) would be with the approval of the medical superintendent.
At present, if a patient is in a stable condition and there is a need for further, sometimes high-risk medical treatment, consent must always be given by a court. In line with the intention of the proposed changes, a medical superintendent would contribute to simplifying and thus speeding up the consent procedure for the provision of health services to a patient who is unable to give such consent himself.
Patient awareness has been steadily increasing in recent years. In the public discussion, the autonomy of the patient's decisions regarding his or her treatment and co-responsibility for his or her own health are also emphasised. This would be expressed by allowing the patient to appoint a medical proxy whose task would be to give consent or objection on behalf of the patient to the provision of health services in cases where the patient is incapable of giving informed consent. Despite the controversy this change may raise, practice shows that it is very important and necessary.
Extending the competence of the Patient Ombudsman
The Ombudsman for Patients' Rights' practice shows the need for changes in the Ombudsman's remit so that he can be even more effective in promoting the realisation of patients' rights.
Ombudsman in administrative and civil matters
According to the proposed changes, the MPC could, in matters of patient rights, initiate administrative proceedings before authorities, as well as bring complaints before administrative courts and participate in these proceedings. It is also important that the Ombudsman could support families of deceased patients in civil proceedings.
In matters concerning patients' rights, the Ombudsman would be able to request the institution of administrative proceedings, to lodge complaints and cassation appeals with an administrative court, as well as to participate in these proceedings - with the rights of a public prosecutor
Financial penalties
In addition to the right to participate in proceedings before the Constitutional Court, the Ombudsman would also have the possibility to impose a financial penalty for the mere finding of practices by a health care provider that violate the collective rights of patients, rather than only if corrective action is not taken, as is currently the case.
Simplified procedure for "repeat offenders"
It would also be possible to equip the Patient Ombudsman with the power to impose penalties (up to PLN 500,000) in the event that a healthcare entity resumes practices that violate the collective rights of patients, which the Patient Ombudsman has already issued decisions on and banned. Currently, in such cases, the Ombudsman has to initiate and carry out further proceedings. Such a power would significantly reduce the time taken to resolve such cases and would directly translate into an improvement in the degree of compliance with patient rights. Proceedings for practices that infringe the collective rights of patients apply to all patients of a given healthcare institution. A very large number of people are therefore potentially at risk of having their rights violated and these violations can directly affect patient safety.
Another proposed change would be to give the Ombudsman the power to impose fines (up to PLN 100 000) in the event of finding repeated irregularities that have already been the subject of individual investigations. If the Ombudsman does not receive the requested documents and information in the course of investigating practices that violate the collective rights of patients - he could impose a penalty of up to PLN 50,000 on the entity to which the request was addressed. The Ombudsman could also set a deadline for compliance with the request.
The Ombudsman's recommendations
As part of its educational and preventive tasks, the MPC could also issue recommendations to healthcare providers on good practice in the implementation of patient rights. Other public administration bodies, such as the Ombudsman for Small and Medium-sized Enterprises and the Ombudsman for Children, are equipped with analogous powers.
Compensation in the event of death
It is also proposed to extend the powers of the MPC to participate in civil proceedings concerning violations of patient rights. At present, in civil cases involving a violation of patient rights, the Ombudsman may, ex officio or at the request of a party, request that proceedings be instituted and participate in pending proceedings on the rights of the public prosecutor. However, the Ombudsman does not have the capacity to bring an action for damages in favour of the relatives of a patient who has died as a result of a violation of his or her rights. However, also in the event of the death of a patient in respect of whom a patient's rights have been infringed, the Ombudsman should be able to institute or take part in civil proceedings, in particular in cases of compensation.
Obligations of the patient
The draft amendment to the law, presented at the end of 2018, also included a proposal to introduce so-called patient duties, or obligations.
From the discussions and demands of patient organisations, it is time to also start talking about the duties of the patient. These could include, for example, the obligation to follow the doctor's instructions, to provide him with accurate and truthful information about his condition. This could also include notification of missed appointments or cancellation of appointments, provided that the provider has a real opportunity to fulfil this duty (e.g. free phone calls or effective e-mails).
Patients' duties are widely discussed, mainly with patient organisations. Not everyone is in favour of introducing such a measure, but the prevailing view is of the educational dimension of the introduction of duties. Certainly at this stage, no sanctions are envisaged for their violation - they are primarily intended to have an educational value. Patients' duties are also intended to be universal in the sense that they would apply to patients receiving publicly funded services as well as to patients paying for treatment with their own funds.
Council of Patients' Organisations
In February 2020, a Council of Patients' Organisations was set up by order of the Ombudsman. In the event of an amendment to the Act - the Council would gain its own tasks and competences, which are precisely entrenched in the Act.
Discussions and consultations with patient organisations led to the proposal that the Council should be consultative and advisory, with a four-year term of office.
Its tasks would include:
- identifying and presenting to the Ombudsman areas of risk in the implementation and respect of patient rights,
- giving its opinion on the matters submitted to the Council by the Ombudsman,
- cooperation with non-governmental organisations one of whose statutory objectives is to undertake activities related to the protection of patients' rights or education on these rights
- undertaking, jointly with the Ombudsman, patient rights education activities
- giving an opinion on draft laws, regulations and other documents relating to health care;
Opportunity
By far the most serious challenge for health care as a whole at the moment is getting the coronavirus pandemic under control. With the building of immunity and the consistent implementation of the vaccination strategy, there is an opportunity to stabilise the situation and gradually return to normality. However, this will not be without the need to repair the damage caused by the virus, which has severely damaged the capacity and efficiency of the system, also affecting mortality rates.
The pandemic exposed many systemic weaknesses affecting patient safety and the realisation of patients' rights.
Therefore, an amendment to the Act on Patients' Rights and Patients' Ombudsman could also be part of a comprehensive remedial strategy. A draft, taking into account the postulates discussed above, has been prepared and a decision is needed for its effective implementation. The declarations of the Ministry of Health and the level of understanding of this need on the part of Minister Adam Niedzielski allow us to look with hope to the future and the prospects of the law being passed as early as 2021. There is an opportunity for this. I very much hope that we will seize it.
The material for the Institute for Patients' Rights and Health Education was prepared by Jakub Gołąb, Director of the Patients' Rights Ombudsman's Department of Social Dialogue and Communication, as part of the Network for Health project.
The 'Network for Health' project is implemented with a grant from the Active Citizens - National Fund programme funded by Iceland, Liechtenstein and Norway under the EEA Funds.