Poorly formulated provision on gratitude gifts for health workers

The new Law on Health Care, adopted as one of the acts passed through the "fast lane" of the National Assembly and without adequate debate, in April 2019, brings rules on conflict of interest, some of which are useful and some very problematic.

The public debate was organized on this act, but at the end of 2016 and early 2017. However, there were no such problematic provisions in the draft law then, so it cannot be said that all interested parties had an opportunity to declare. Also, it is noticeable that some of the changes in this article may have been inspired by the opinion of the Anti-Corruption Agency of December 2017, but these recommendations have been formulated formlessly.

In Article 234, entitled "conflict of interest", corruption is unnecessary defined, using definitions from other laws, and then "conflict of interest" and "private interest" by a similar model, as it does in the case of the provisions of the laws applicable to public officials and officials.

Paragraph 5 sets a prohibition for healthcare workers and associates, members of the public health care institutions, as well as members of their immediate families, to seek or receive money, gift, service or any other benefit. They may not seek this benefit for themselves, members of their immediate family, or natural and legal persons that are justifiably considered to be interconnected.

Gifts may not be sought or received if they "can affect impartiality or professional performance of duties", and if they "can be considered as a prize in connection with the performance of duties and the performance of healthcare activity".

In this section, the norm is almost identical to that applicable to all employees in public services, although it may be justified to ask the need for it, in view of the provisions of the Criminal Code. Namely, criminal law norms already predict sanctions for "officials" who directly or indirectly receive bribes in order to do what they otherwise have to do, or who use the official position to achieve unlawful benefits for themselves or others.

Laws relating to public service employees should regulate situations where there is suspicion of the permission of a gift or the treatment of an unlawful gift when it was not possible to avoid admission and other disputable issues not regulated by criminal law.

The most controversial is paragraph 6 of this article.

It was tried, probably not with a bad intention, but definitely unknowingly, to edit the reception of "gratitude gifts", which are less valuable. The Law on the Anti-Corruption Agency and the Law on Civil Servants also contain provisions relating to "protocol and suitable gifts of small value". Such gifts can be received and retained if the individual value is less than 5% of the average salary, and the total value over one year is lower than the average salary in the Republic.

What is this about?

Public officials may be able to obtain from the representatives of other institutions and other parties suitable gifts (for example, diaries, calendars, pens, books, ornamental items, etc.) which obviously do not have the purpose to influence their impartial treatment, and therefore there is no reason to ban their reception and retention. As the norm does not break into its opposite, and in order not to create the temptation to influence the performance of the gift, the individual and the general maximum are prescribed. It is also stipulated that such a gift cannot be monetary.

However, in the Law on Health Care, the legislator decided to arrange "gifts of gratitude" instead of occasional gifts, and this created a problem.

There is no doubt that the gifts of grateful patients and members of their families are widespread practice and that this practice should be arranged so that patients do not create a sense of obligation, and in health care workers expectation and temptation to act unequally in future encounters.

The "suitable gifts" that occur with public officials and officers are essentially a different thing from the "expression of gratitude", and could be regarded as an expression of perseverance and petty attention in various, not so frequent occasions.

For example, when it comes to doctors, it could be a situation when they receive a USB stick or a notebook from representative of the company that produces medications at a seminar, and not gifts that it might want to offer to dozens of grateful patients service provided.

In other words, it seems that the legislator had to go in the direction of educating the public in order to reduce the number of situations in which service users will consider giving gratification gifts appropriate, directing grateful patients to help the work of the institution, not the individuals, or that the work of kind medical workers is rewarded on the basis of a satisfaction survey of service users.

In the current norm, fundamentally different gifts are regulated - expressions of patient gratitude and advertising material and samples, which could be donated by representatives of pharmaceutical and similar companies. These gifts must not be in money or securities. Their individual value must not exceed 5% of the average monthly net salary in the Republic.

The total value is limited to the average earnings, but without the period to which it relates, so that part of the norm is unusable (it is probably by mistake that the rule relates to the calendar year). This is a gift whose individual value does not exceed 2.726 dinars, and the total is 54.521 dinars.

Lawmakers also voted that such a gift "is not considered as corruption, conflict of interest, or private interest, in accordance with the law."

This norm is contrary to the provisions of the Criminal Code. Namely, no matter how unlikely it will be in practice, it is not possible to foreclose in advance the possibility that someone will act biased and provide a patient with a service that does not belong to him or gave him priority in the next intervention and because of such a petty gift. The Health Care Act cannot regulate what is and what is not receiving and giving bribes, so this is one more reason to re-examine this insufficiently thought-out norm.