AMENDMENT TO THE HEALTH SERVICES ACT OR APPLICATION ISSUES OF EXISTING LEGISLATION (Part One)

During the entry into force of Act No 372/2011 Coll., on Health Services and Conditions of their Provision (hereinafter referred to as "HSS"), a range of application problems have arisen, which successive amendments have continuously sought to address. The current amendment to the Health Care Act is intended to eliminate even the latest application problems, so let's take a look together at some of the areas that should be affected by the amendment.

The amendment therefore focuses mainly on practical issues such as the regulation of emergency services, aesthetic medicine follow-up inpatient care and other areas. One of the most important changes should be to reduce the administrative burden on health service providers, which we will focus on in more detail in this article.

Excessive administrative burden on health service providers

The current legislation sets out certain obligations for health service providers, the definition of which in practice proves to be insufficiently specific, or which do not benefit the provision of health services or patients themselves and thus become only an unnecessary administrative burden for health service providers.

For example, Section 45(2)(h) of the MHPA provides for the obligation of the provider to draw up a list of health services for which written consent is required. According to Section 34(2) of the HCA, written informed consent is required only if the law so provides and if the health service provider so determines. The provider should then identify and define the health services for which it will require written informed consent in the above list of health services.

In practice, however, the exhaustive list of health services for which the patient's written consent is required poses difficulties, as it does not allow the provider to take into account the specific case and, taking into account the personality of the patient, to request written consent even in a case not included in the list, or, on the contrary, to waive the requirement of written consent. This obligation thus only imposes an unnecessary administrative burden on the provider. The amendment thus deletes this obligation to maintain this list of health services.

Another example of an administrative burden can be found in the provisions of Section 93(4) of the Health Care Act, which obliges a provider of inpatient or day care to draw up a procedure for handling complaints and to publish this procedure and information on the possibility of lodging a complaint in the health care facility, in a publicly accessible place and on its website. This is essentially an obligation to publish the complaints procedure already regulated in the HPA, but this has no justifiable benefit for the patient and thus appears superfluous.

The amendment therefore proposes the abolition of the obligation for providers to draw up a complaints procedure, which is sufficiently clearly regulated by law and constitutes redundant administration for providers, consisting essentially of merely copying the statutory provisions into their internal regulations.

On the contrary, the current legislation does not provide for the delegation of a specific person to day care and inpatient care providers to handle complaints so that the patient can directly address his/her complaint to a specific individual. As a result, the patient does not know who is in charge of his/her complaint and to whom he/she can refer to in the event of a complaint against the provider, which highlights the shortcomings of the current legislation. The amendment thus introduces the obligation to appoint a person in charge of complaints - the so-called hospital ombudsman - and to publish information on the contact details of this person and the possibility to lodge a complaint in the healthcare facility, in a publicly accessible place and on its website.

The HCA also regulates the obligation of providers to keep records of the use of restraints (Section 39(4) of the HCA) and records of complaints and the manner in which they are handled (Section 93(3)(c) of the HCA), but it does not, however, specify the formalities of these complaints, which raises application problems in practice resulting from the different approaches of providers to meeting these obligations. Thus, the amendment incorporates this requirement and expands and specifies the list of data that the provider is obliged to record in its records on the use of restraints. The amendment thus aims at unifying the existing divergent practice and provides certainty in such a sensitive area as the use of restraints.

Due to the breadth of the areas to be regulated, further aspects of the amendment will be dealt with in the next article, focusing in particular on the new regulation of, for example, previously expressed wishes, the use of restraints and the wider consideration of victims of domestic or sexual violence.

If you have any questions in relation to health law or related issues, please do not hesitate to contact us. We would be happy to learn more about your case and provide you with appropriate legal assistance.

Responsible lawyer: Mgr. Barbora Dlabolová, Kateřina Chaloupková collaborated on the article.