Planned revision of the so-called "clause of conscience"

The draft amendment of the Act on the profession of doctor and dentist provides for the abolition of the existing obligation of the physician to indicate the conscience clause of another doctor or person who undertakes to carry out the benefit in case of whom another doctor has refused to perform

On 28 May 2020 After the third reading at the session of the Sejm, he was passed, a draft amendment of the Act on Doctor and Dentist Competition. Modified project, among others Article 39 Doctor and Dentist Competition Act dated 5 December 1996 (Journal of Laws of 1997, item 152, i.e.

dated 28 February 2020 (Journal of Laws of 2020, item 514, hereinafter as the ‘Law’), which constitutes the so-called ‘clause of conscience’.

The project provides for the abolition of the current obligation for the physician to indicate the conscience clause of another doctor or entity who undertakes to carry out the benefit in case of whom another doctor has refused to perform. Change in vw.

Article 39 The bill is primarily related to the right to refuse an abortion by a doctor in third permitted cases indicated under Article 4a. Act dated 7 January 1993 about family planning, the protection of the human fetus and the conditions for abortion.

Conscience clause and doctor's statutory duties – the previous wording

According to Article 39 A doctor may refrain from carrying out health benefits incompatible with his or her conscience, subject to Article 30 Act, except that it is required to indicate the real possibility of obtaining this benefit from another doctor or in a medical facility and to justify and record this fact in medical records. In addition, a doctor who performs his profession on the basis of an employment relationship or within the framework of a service shall be obliged to notify the superior in writing.

Heading Article 30 The Act states that it is the duty of a doctor to provide medical assistance whenever delay in giving it could result in a risk of loss of life, serious bodily injury or severe health disorder, and in other cases of urgency. In addition, according to Article 69 Medical Ethics Code, a doctor may not refuse medical treatment in cases of urgency if the patient is unable to obtain it from the institutions appointed to provide assistance.

When your doctor may refuse to perform the procedure

In the light of the above mentioned provisions, the doctor has so far had the right to refuse to perform the service, citing a clause of conscience where delay does not result in the danger of loss of life or serious bodily injury or in other cases of urgency. In addition, a doctor is required to indicate the real possibility of obtaining this benefit with another doctor or in a medical facility and to justify and record this in the medical records.

It should be borne in mind that a doctor employed in a public flax plant is not in a position to refuse a abortion procedure based on a conscience clause where abortion concerns a pregnancy where pregnancy poses a direct risk to the life or health of a pregnant woman. In this case, it is affected, among others, Article 15 Act dated 15 April 2011 of therapeutic activities and Article 30 The bill. [1]

On the other hand, where prenatal studies or other medical conditions indicate a high probability of severe and irreversible foetal impairment or incurable life-threatening disease, a public medical establishment is required to perform abortion.

The practice of certain public medical establishments, consisting in the submission of a declaration by those entities of non-continuation procedures in general, should be considered unlawful.

In the current state of the law, only a doctor can rely on a clause of conscience, but that is not possible for a public medical establishment [2] .

Reasons for amendment

In response to a question on the justification for the amendment, under Article 39 The laws of the ruling party indicate that a doctor who refuses, for example, to perform an abortion by citing a clause of conscience also acts contrary to his beliefs by pointing out to another doctor or entity who may perform such a procedure. Furthermore, according to the ruling party, information on the places where abortion can be carried out can be found on the Internet.

At this point, it should be pointed out that such a doctor's duty has been recognised by the Constitutional Tribunal in breach of the Constitution of Poland. The Court pointed out that the constitutional guarantee of freedom of conscience protects an individual not only from forcing a direct assassination of a protected good, but also from such conduct which indirectly leads to an unacceptable ethical effect, in particular from coercion in achieving the wicked goal (point 6.2.1 justification for the judgment of the Constitutional Tribunal dated 7 October 2015, K 12/14) At the same time, the Court assessed that the legislator could and should apply other, more effective, ways of informing the patient of the real possibility of obtaining a health benefit (point 6.2.6 justification of the judgment) [3] .

Despite the above-mentioned reasons, the Constitutional Courts have been amended Article 39 The bill does not point to other, more effective, ways of informing the patient. Moreover, the proposal to amend Article 39 The law completely waives any obligation to inform the patient, which may be questionable, among others, from the perspective of patients' right to access public information.

Author: Hanna Żołnierkiewicz

Lawyer in the Legal Department. From 2017 associated with Russell Bedford Dmowski & Partners Law Firm Sp.k. He has experience in legal services to entrepreneurs in terms of merger, division and transformation of companies, bankruptcy, restructuring and capital market law. He conducts the day-to-day handling of commercial law companies, including drafting corporate documentation, both in Polish and English. He also represents clients before the general courts in economic and civil law cases.