The Ministry of Justice wants to amend provisions of the Anti-Corruption Act that regulate the extent to which doctors can treat their next of kin. Where doctors welcome planned changes, the Office of the Prosecutor General perceives added corruption risk.
According to the Anti-Corruption Act, a doctor is an official when issuing sick leave certificates, writing prescriptions or sending patients in to get tested, meaning that they need to observe procedural restrictions, the planned bill's draft memo reads.
The restrictions provide that an official cannot make decisions pertaining to connected persons nor order their subordinates to make such decisions for them. Instead, they must immediately notify their superior who will take necessary decisions or delegate the task.
In situations where a doctor makes no decisions pertaining to the patient, such as during an examination or when explaining test results, they are usually not an official in the meaning of the law. However, sending a patient in for tests could create such grounds as it results in obligations for the Health Insurance Fund, for example, in having to pay for procedures.
This means that doctors should recuse themselves in situations where they would have to treat next of kin or make a procedural restrictions exception, which complicates assisting next of kin.
The planned amendment would introduce an exception for medics from procedural restrictions and recommends regulating the matter through hospitals' internal rules and the Estonian Medical Association's code.
The memo points out that no proceedings where medical workers have been suspected of violating procedural restrictions by treating loved ones have been brought in ten years.
Tallinn and Estonian medical associations turned to the Riigikogu in late 2019 to suggest the restrictions in the Anti-Corruption Act should not apply when doctors are treating patients and for activities therein, such as writing prescriptions or issuing sick leave certificates.
The justice chancellor also found that the law should not interfere with doctors treating people, or doing their work in other words. The chancellor of justice proposed making a procedural restrictions exception for healthcare services, which solution the Ministry of Justice supports.
Exceptions to be based on hospital in-house rules
At the same time, the planned amendment has to address rules of avoiding conflicts of interest. Several countries have similar guidelines and the ministry believes they could add clarity in borderline situations.
"For example, referrals for more expensive surgeries or other procedures, or those that sport a longer waiting period, paid for by the Health Insurance Fund could require a second opinion. If they would have made the same decision on the same grounds, we can assume that the patient has not received preferential treatment," the ministry writes.
The Tallinn Medical Association told the Ministry of Justice that it supports changes for healthcare workers as existing regulation is not clear enough and constitutes a disproportionate hindrance considering Estonia's small population and shortage of specialists.
The association also finds that state-funded medical services do not leave doctors with enough time per patient to weigh whether they could be a connected person in the meaning of the law.
"These problems cannot be solved through additional trainings as health workers would still have to evaluate the extent of their connection to the patient – a case of weighing the circumstances to which no clear legal answer can be provided," association head Pille Anderson said.
That is why Tallinn doctors find that the most sensible solution is to make an exception and exempt healthcare workers from compliance with procedural restrictions, which should also cover sick leave certificates, prescriptions etc.
Prosecution finds changes questionable
The prosecution disagrees and is against making a procedural restrictions exception for healthcare workers.
"The prosecution finds that the threat of corruption cannot be ruled out in the activities of doctors and other healthcare workers – for example, when making costly treatment decisions," Prosecutor General Andres Parmas said in a comment sent to the justice ministry.
Pursuing an exception in the law would cause procedural restrictions not to be applied when treating patients, ordering tests, writing prescriptions and sick leave certificates, and referrals. All these situations theoretically sport the risk of corruption, for example, ordering treatment for connected persons or issuing sick leave certificates for next of kin to ensure temporary income.
"We could ask why should doctors and healthcare workers be treated differently from other public service providers – while the new law would exempt doctors from responsibility when issuing sick leave certificates, the Health Insurance Fund official making decisions based on the certificate would still be culpable for a similar decision etc.," Parmas pointed out.
The prosecution finds that existing legislation gives doctors the right to act in emergency situations or when procedural restrictions would be insensible from the point of view of public interest.
The Ministry of Justice has scheduled meetings with stakeholders during and after coordination of the bill which it hopes to finish by August 1.
The law would enter into force on March 31 next year.
Editor: Marcus Turovski