Patient rights legislation: Tysiac v. Poland
- Country:
- Polen
- Partner Institute:
- Institute of Public Health, Jagiellonian University Medical College, Krakow
- Survey no:
- (14) 2009
- Author(s):
- Anna Mokrzycka
- Health Policy Issues:
- Politischer Kontext, Zugang, Patientenbelange
Current Process Stages
| Idee | Pilotprojekt | Strategiepapier | Gesetzgebung | Umsetzung | Evaluation | Veränderung/Richtungswechsel | ||
|---|---|---|---|---|---|---|---|---|
| Implemented in this survey? |  |
|
|
|
 |
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|
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Abstract
After the Judgement of the European Court of Human Rights in 2007, the Tysiac v. Poland case was legally closed. In the context of discussions on a new Polish Court judgement and the role of the recently appointed health Ombudsmann in such a case, it again became spectacular in Poland. The law with provisions on the duties and status of the Ombudsmann was enacted in May 2009, but it seems that in the sphere of legal abortion the problem cannot be solved easily.
Purpose of health policy or idea
A new judgement of the Polish court concerning the case of Alicja Tysiac issued in September 2009 is of great importance. The court admitted her the quota of 30000 PLN as a compensation for moral damage caused by an article of a Polish priest. This time the case did not concern a patient's right to a treatment, however, the European Court of Human Rights judgement from 20th of march 2007 was widely commented in this context. The discussion involving all the political parties, university environment and professionals was initiated again. Due to the explanations and commentaries that came afterwards, there is no doubt that Polish legislation states the legal conditions to health care services also for the so called legal abortion procedure. Alicja Tysiac´s case should have been solved according to the adequate legal provisions. Conditions stated there would have been clearly met if she would not have been refused the right to receive the medical documentation proving that she is in a health danger because of her pregnancy. She should have been admitted to the hospital on ground of provisions in force.
The most important conclusion derived from the wide public discussion is that the Polish health system lacks a powerful representation of patients and their rights - a strong health Ombudsman post. After the President's veto concerning the "health package" including the law on patients' rights the post could not be introduced. Only after the second pass of the law it has been created. At the time of the Tysiac v. Poland case, Mrs Tysiac could not profit from such possibility and her claim went directly to the European Court - but it was to late for a change. Now, after the new trial in the Polish court concerning the moral damage caused by the press article and following the public discussion, the Ministry of Health (MoH) issued a communication concerning the necessity of precisely stated competences for a health Ombudsman in such cases. At the first place it should include all the possible instruments for the execution of patients´ rights. There is no doubt that Alicja Tysiac´s case strongly influenced the situation concerning patients' rights in Poland. There is also no doubt that the President and the political environment supporting him (PIS party) is opposed to the whole case and would not like to combine it with the role of health Ombudsman. Moreover, Mrs Tysiac was not given the quota of compensation so far.
Strangely, Alicja Tysiac has not received the money from Poland despite the European Court judgement. In this context, the important information concerns MoH activity: MoH did not undertake any relevant steps and was not so much interested in strengthening the position of the health Ombudsman, having officially showed a strong interest in the media campaign after the current judgement of Polish court. It will be interesting how the situation will evolve and what measures will be introduced in practice.
Main points
Main objectives
Concerning the health Ombudsman post and his/her competencies in cases similar to Alicja Tysiac´s case, the main objective of MoH is to show the opposite attitude to the President position and to respond to the public opinion and experts objections concerning MoH forbearance. Another aim is to show the engagement of MoH not only into the privatisation of hospitals process (so called "Plan B ", cf. HPM report 2009 (14)), but also deep interest in patients' rights including access to health care services, representation of patients' interests and obedience of legally defined liabilities of the sector.
Type of incentives
Non - financial: there is a need for specific instruments included into the executive regulation of MoH precisely defining the possibilities for patients in cases of patients' rights infringement.
Groups affected
Patients at the first place: better access to services due to possible claim procedures adressed to Ombudsman office., The health Ombudsman post: more clear and possibly stronger position due to the potentially introduced instruments., Professionals: medical doctors support such initiative in this particular context, but their position towards the health Ombudsman role and competencies in general is complicated.
Suchhilfe
Characteristics of this policy
| Innovationsgrad | traditionell |
|
innovativ |
| Kontroversität | unumstritten |
|
kontrovers |
| Strukturelle Wirkung | marginal |
|
fundamental |
| Medienpräsenz | sehr gering |
|
sehr hoch |
| Übertragbarkeit | sehr systemabhängig |
|
systemneutral |
In the context of Mrs Tysiac´s case - and there will be probably more such cases in the future - the new health Ombudsman's position should help women in difficult situations. It is very important that they can use such an instrument and control a doctor's decisions with the help of the Ombudsman. Problematically, formal procedures are still not precise and lack some important provisions. It is still true that the physicians environment does not want to accept that, in case of controversy, the patient-doctor relation should be "equalised" by provisions that give patients legal instruments to check the doctor's decision. As the Mrs Tysiac case proved - and it was also underlined by the European Court of Human Rights - practically such a patient cannot object. They cannot appeal from the doctor decision - even in cases that may be dangerous for a patient's health. The Ombudsman post should provide such possibility, however, his/her conclusions and decisions also rely on a written medical documentation provided by a doctor. It would be very useful to create a professional and independent gremium of medical doctors who would be put on a governmental list of experts to help in most controversial cases.
Political and economic background
The problem of strenghtening and monitoring patients' rights has been discussed for a long time in Poland. The issue of equal acces was also a big question. All together, the above problems "interfered" in this particular case of Alicja Tysiac and raised a new and stormy public debate. Moreover, it engaged polititians, researchers, the catholic community, medical professionals and a wide group of patients (not only women). Still the big problem is how to define on legal grounds the main issues, responsibilities, procedures as a proper and formalized quarantee for a systemic approach to patients' rights obedience in similar cases. This is not clear in the context of current discussions and in case of a "right to abortion" on the ground of legislation in force: the only conclusion that raises no doubts is that a health Ombudsman should have defined and transparent competencies also in this particular field.
There are three important formal aspects defined by the law that are evoked often: strict time requirements; formal conditions concerning health prerequisities and formal circumstances regarding ethical questions (rape as a cause of pregnancy). For such reasons - mostly because of a short period of time defined in Polish law as an abortion procedure permissibility - the procedure available for health Ombudsman intervention should be precise and strict. As it was described above, the provisions concerning the health Ombudsman post had been included in the law which was victimised by the President's veto. Now it is introduced by law but still - for different reasons - not adequately and sufficiently defined.
Complies with
The European Court of Human Rights Judgement - Tysiac v. Poland case from 20th of March 2007 (application no 5410/03).
Purpose and process analysis
Current Process Stages
| Idee | Pilotprojekt | Strategiepapier | Gesetzgebung | Umsetzung | Evaluation | Veränderung/Richtungswechsel | ||
|---|---|---|---|---|---|---|---|---|
| Implemented in this survey? | |
|
|
|
|
|
|
|
Origins of health policy idea
The problem of proper observance of patients' rights and of the health Ombudsman post introduction to the health system was raised very early. As described, after the President's veto concerning the "health package" (5 laws on different health system spheres) including the law on patient's rights, the possibility for the Ombudsman post had to be postponed. After the second pass of the law it has been introduced. The current idea of MoH policy is to devise a piece of executive regulation including particular guidelines for procedures that could be undertaken by the Ombudsman in cases similar to the described one.
The main driving forces in this particular case are the two opposite political parties and the catholic church. President and MoH are showing different attitudes; the MoH stresses the question of access to health services whether the President emphasizes ethical aspects of abortion in general.
The European Court of Human Rights adds a new light on the discussion: shuffling it from the moral field into the systemic solutions and legal obligations and responsibilities of a state on a ground of internal Polish legislation in force.
Initiators of idea/main actors
- Regierung: The Government as a whole struggled for the new legislation to be passed. Finally the Law on Patients´ Rights was adopted. G. enounced that the new solutions concerning the Ombudsman should be implemented, but did not propose anyone for the post.
- Parlament: Involved in political games, supports the main idea of health Ombudsman role, but in case of access to abortion procedure it will be deeply divided into the positions of the two main political opposite parties (C.Platform and PIS).
- Leistungserbringer: Officially declared support for the Patients' Rights Law, but in fact they are not happy about the perspective of giving patients power and are afraid of strong instruments. However, in the case of Mrs Tysiac they expressed strong support for clear regulation.
- Kostenträger: NHF as well as private insurers from the beginning not engaged into the issue and nothing has changed in this field.
- Patienten, Verbraucher: They strongly support the legislation and all the measures that could be implemented in the context of strenghtening their position in the health care system.In this particular case women (and their representation) are deeply involved.
- Bürgergesellschaft: Many civil society organisations supported the general idea of Patient's rights new legislation, but at present are specificly interested in Mrs Tysiac case and support the opinion that the health Ombudsman´s role should be strenghtened in this context.
- Wissenschaft: Generally they support the idea, however there were voices of medical academic people, supported also by a few lawyers, raised against it. Some criticized the concept of patients’ rights in a new law -also in the context of Mrs Tysiàc case.
- Medien: The media supported the idea of patients’ rights and covered the issue quite often.
- Politische Parteien: Parties support the main idea of strenghtening patients' rights and the health Ombudsman´s position. In this context, they will be divided into two main opposite positions concerning the abortion procedure access.
Approach of idea
The approach of the idea is described as:
renewed: As described above the idea is not new (included in "health package") but currently brought into life with the new perspective and context (ECHR judgement, Polish court judgement MoH reaction, President position, a wide debate and media campaign).
Stakeholder positions
As it was mentioned before, the general idea of "codification" of patients' rights is not new and has been developed quite a long time ago. The purpose and fundamental rules concerning protection of patients' rights were widely supported (with some exemptions described above). The present situation has changed in this one particular aspect - the access to the abortion procedure as a patient right on a Polish provisions grounds and in the context of Mrs Tysiac´s case. The new judgement of the Polish court, after the European Court of Human Rights verdict from 2007, provoked new discussion and immediate reaction of MoH. The judgement stressed that in Mrs.Tysiac´s case the 8art. of the Convention of Human Rights was infringed, but it is important mainly because of the given reasoning:
1) The Court stated that Polish law provisions give the right to abortion in defined circumstances, but do not provide for a proper procedure and instruments.
2) Polish medical doctors are afraid of providing such service to a patient, because they are frightened by the imprisonment perspective in case of not fulfilling the requirements stated in law.
3) Provisions of Polish legislation are not adequately precised in terms of the time period for the decision making process - the patient should "receive" decision in such a time span that would allow for the medical procedure to be legally implemented. The votum separatum to this judgement should be mentioned: Judge Francisco Javier Borrego from Spain did not accept such legal grounds and stressed his opinion concerning the consequences of reasoning evoking the 8art. of the Convention of Human Rights infringement.
On 23th of September 2009, the Polish court issued the new judgement in a new case of Mrs Tysiac, this time concerning her claim against the Polish priest who published a text commenting the ECHR judgement in the catholic newspaper "Goúã niedzielny". The court stated that Mrs Tysiac should receive a financial compensation for the moral damage caused by the article. This judgement raised a stormy discussion that evolved in the direction of patients' rights legislation and the role of the health Ombudsmann. In such circumstances it was quite often underlined - frequently in different opinions concerning the main problem - that government and MoH abandoned the implementation of legislation concerning patients' rights. Only on the 2nd of October Donald Tusk proposed Mrs. Krystyna Kozlowska for the health Ombudsmann post affiliated with MoH. As described before, the idea of patients' rights protection was never questioned, but after the judgement of the 23th of September, the situation seems to be complicated. The President protested against the judgement itself and consequently against the idea of "combining" the Mrs Tysiac case with the sphere of patients´ rights and health Ombudsman competencies. The other side of this new conflict expressed the opposite approach, underlining the neccessity of a precise regulation of competencies and procedures (frequently recalling ECHR judgement in this context).
Actors and positions
Description of actors and their positions
| Regierung | |||
| Ministry of Health | sehr unterstützend |  | stark dagegen |
| Prime minister | sehr unterstützend | | stark dagegen |
| Parlament | |||
| Prliament | sehr unterstützend | | stark dagegen |
| Leistungserbringer | |||
| Clinicians | sehr unterstützend | | stark dagegen |
| Hospital doctors | sehr unterstützend | | stark dagegen |
| GPs | sehr unterstützend | | stark dagegen |
| Kostenträger | |||
| National Health Funds | sehr unterstützend | | stark dagegen |
| Private Insurers | sehr unterstützend | | stark dagegen |
| Patienten, Verbraucher | |||
| women | sehr unterstützend | | stark dagegen |
| Bürgergesellschaft | |||
| women organizations | sehr unterstützend | | stark dagegen |
| other NGO's (representing patients) | sehr unterstützend | | stark dagegen |
| Wissenschaft | |||
| Medical doctors and researchers | sehr unterstützend | | stark dagegen |
| Other academics (including general lawyers community) | sehr unterstützend | | stark dagegen |
| Particular lawyers (mainly advocats) | sehr unterstützend | | stark dagegen |
| Public health academics | sehr unterstützend | | stark dagegen |
| Medien | |||
| Public TV | sehr unterstützend | | stark dagegen |
| Private TV | sehr unterstützend | | stark dagegen |
| Press | sehr unterstützend | | stark dagegen |
| Medical professional journals | sehr unterstützend | | stark dagegen |
| Politische Parteien | |||
| Civic Platform | sehr unterstützend | | stark dagegen |
| PIS (Right and Justice) | sehr unterstützend | | stark dagegen |
| Social Democrats | sehr unterstützend | | stark dagegen |
| Peasants’ Party | sehr unterstützend | | stark dagegen |
Influences in policy making and legislation
The legislation in a form of a Law on Patients' Rights was adopted by Parliament on the 6th of November 2008 and then signed by the President on the 26th of November 2008. It was included into the whole "health package" consisting of 5 laws. The president was mainly opposed to the so called "hospital privatization law" and rejected to sign it. As all laws constituted a package, the President veto "influenced" the whole package and none of the laws could be implemented.
On the 24th of April 2009 this legislation was adopted. In May, the Ombudsman's post was established, although no one was assigned for it by the Polish Prime Minister until the 2nd of October. It seems not only to be a question of a simple coincidence that in such a close period of time between the 23rd of September and 2nd of October, the decision was made after all.
Legislative outcome
major changes
Actors and influence
Description of actors and their influence
| Regierung | |||
| Ministry of Health | sehr groß | | kein |
| Prime minister | sehr groß | | kein |
| Parlament | |||
| Prliament | sehr groß | | kein |
| Leistungserbringer | |||
| Clinicians | sehr groß | | kein |
| Hospital doctors | sehr groß | | kein |
| GPs | sehr groß | | kein |
| Kostenträger | |||
| National Health Funds | sehr groß | | kein |
| Private Insurers | sehr groß | | kein |
| Patienten, Verbraucher | |||
| women | sehr groß | | kein |
| Bürgergesellschaft | |||
| women organizations | sehr groß | | kein |
| other NGO's (representing patients) | sehr groß | | kein |
| Wissenschaft | |||
| Medical doctors and researchers | sehr groß | | kein |
| Other academics (including general lawyers community) | sehr groß | | kein |
| Particular lawyers (mainly advocats) | sehr groß | | kein |
| Public health academics | sehr groß | | kein |
| Medien | |||
| Public TV | sehr groß | | kein |
| Private TV | sehr groß | | kein |
| Press | sehr groß | | kein |
| Medical professional journals | sehr groß | | kein |
| Politische Parteien | |||
| Civic Platform | sehr groß | | kein |
| PIS (Right and Justice) | sehr groß | | kein |
| Social Democrats | sehr groß | | kein |
| Peasants’ Party | sehr groß | | kein |
Positions and Influences at a glance
Adoption and implementation
The current development of the Patients' Rights Law implementation process in the context of the described Polish court judgement shows that there is a necessity to specifiy legal conditions concerning procedures and circumstances for such cases. The new health Ombudsman´s office organization should help patients who cannot access legally guaranted access to health procedures. The competencies of the health Ombudsman include the initiative concerning the investigation in cases of individual patients' rights infringement as well as the initiative for such new regulation that can protect and strengthen patients' position in the system. The main obstacles in the context of legal abortion (under clearly stated conditions) may be caused by political reasons. It is a very delicate sphere, but the legal provisions should not depend on the political decisions and the health Ombudsman should undertake action in such cases.
Monitoring and evaluation
The health Ombudsman is directly responsible to the Prime Minister who reports to the Parliament on his /her activity. As it was described earlier there are the two strong opposite parties that will not agree on fundamental issues concerning abortion. But so far the current legislation includes provisions that can create the basis for interventions of the health Ombudsman. In this sphere, the role of different organizations and media is of great importance as well. Mrs Tysiac´s case gave an important impulse for active public and media support for those whose rights are observed out of political reasons.
Results of evaluation
At this stage it is not possible to describe results.
Expected outcome
The policy described will probably change the patients' situation in similar cases due to the media campaign and due to the new health Ombudsman post. It may influence the patients who will support the idea of precisely stated conditions and who will use the new path for patients' rights execution.
Impact of this policy
| Qualität | kaum Einfluss |
|
starker Einfluss |
| Gerechtigkeit | System weniger gerecht |
|
System gerechter |
| Kosteneffizienz | sehr gering |
|
sehr hoch |
The forecast on the policy impact is difficult at this stage. The political context will not change significantly and only the health Ombudsman´s activity in the future can influence the situation. In fact, it also depends on the personality and her/his strength. Maybe the fact that the post was given to a woman could create different approach. A major difficulty is connected to the doctors´ attitude towards such cases: as the European Court stated in Tysiac v. Poland case, they are afraid to undertake any action and to make a decision that could put them into trouble. To improve this aspect, a major change of formally defined conditions for such procedures as abortion in case of health danger is necessary. Physicians should also be given precise guidelines stated on legal grounds.
References
Sources of Information
The European Court of Human Rights Judgement - Tysiac v. Poland case from 20th of March 2007 (application no 5410/03).
Law on Patients' Rights and Patients' Rights Ombudsman from 6th of November 2008, The Official Journal 2009, No 52, clause 417, No 76, clause 641 - www.mz.gov.pl
Law introducing the Law from the 6th of November 2008 on Patients' Rights and Patients' Rights Ombudsman, the Law on Accreditation in Health Care, the Law on Consultants in Health Care from the 24th of April 2009 , The Official Journal 2009, No 76, item 641
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.