 |
A Doctor - a Public Official? |  |  |  |
 |  |
Drawing: K. Rosiecki [+ a BIG drawing from issue 1/2007, page 35: "paragaf"]
Bartosz NIEMIEC
An answer to a question Who has a status of a public official? may be found in Article 115 § 13 of the Penal Code (1997 Journal of Laws No. 88, item 553, as amended) which reads as follows:
A public official is:
1) the President of the Republic of Poland;
2) a deputy to the Sejm, a senator, a councilor;
2a) a deputy to the European Parliament;
3) a judge, a lay-judge, a state prosecutor, an officer of a preparatory proceedings financial body or a body superior to a preparatory proceedings financial body, a notary public, a court executive officer [komornik], a professional court probation officer, a receiver, a court supervisor, a court administrator, a person adjudicating in cases of contraventions or in disciplinary authorities operating in pursuance of a law;
4) a person who is an employee in a state administration, other state authority or local government, except when he performs only service-type work, and also other persons to the extent in which they are authorised to render administrative decisions;
5) a person who is an employee of a state auditing and inspection authority or of a local government auditing and inspection authority, except when he performs only service-type work;
6) a person who occupies a managerial post in another state institution;
7) an official of an authority responsible for the protection of public security or an official of the State Prison Service;
8) a person performing active military service;
The list cited above does not include a doctor or a dentist. It means that to be recognised as a public official a doctor would have to combine performing the doctor's profession with holding another function. Therefore, a public official shall be a doctor who is an employee in a state administration or local government (meaning, of course, a territorial local government, not a professional one), except when such a doctor performs only service-type work. Doctors who occupy managerial posts in public health care establishments shall be recognized as public officials as well; these can be also doctors employed by the National Health Fund, as well as doctors who are board members of the National Health Fund regional branches. Moreover, according to § 13.3 of the quoted article, a public official is also a person adjudicating in disciplinary authorities operating in pursuance of a law, thus a member of a medical court functioning within a particular medical chamber shall be considered a public official too. It also applies to members of a regional medical council to the extent in which they are authorised to render administrative decisions (for instance: granting the right to perform professional duties), since in the light of § 13.4 of the mentioned article such people, to the extent in which they render administrative decisions, are public officials.
A similar opinion was expressed by the Supreme Court in a sentence of 27th November 2000 in a case recorded under file No: WKN 27/00, stating what follows: "A doctor employed in the public health care sector may be considered as a public official within the meaning of article 115 § 13 of the Penal Code only when he joins his profession with a function of administrative character." The Supreme Court argued also that: "Professional activities do not automatically become functions of administrative character for the sole reason they are performed within state (or self-government) organizational structures of health care. A doctor could be recognized as a public official only if he performed his professional activities within administrative structure of health care, which means he would have to combine his medical profession with a function of public (administrative) character. A circle of such people could include for example a hospital director, a doctor employed in a voivodship governor's office or in a sickness fund.
Thus, the listed (by way of example) above would be public officials for the reason that being doctors they would hold certain administrative functions at the same time. In such a situation their legal responsibility would also have a double-track character. Firstly, as doctors they would be responsible for any misconduct in performing their professional activities and secondly being employed in the health care administration and thus as public officials for exceeding their authority, or not performing their duty and in such a way acting to the detriment of a public or individual interest (Article 231of the Penal Code)"
Therefore, doctors who, due to performing other functions, have a status of a public official bear "additional" responsibility, as well as boast additional protection, but only within the scope of a performed function; a judge of a medical court will be protected as a public official only within this function but not anymore when as a doctor he will be on duty in hospital, although it will be the same person all the time.
It is essential to add here that in certain cases a doctor is entitled (by virtue of the law) to legal protection normally reserved for public officials (however he does not become a public official in any way). Such protection is guaranteed by:
1. Article 44 of the Act of 5th December 1996 on the Profession of a Physician and a Dentist (consolidated text: 2008 Journal of Laws No. 136, item 857): The physician applying first-aid or performing the activities referred to in article 30 of the Act (that means in cases when the physician is obliged to apply medical aid if a delay in applying such aid may for example pose a threat to life) is entitled to legal protection as for the civil servants.
2. Article 2 paragraph 2 of the Act of 15th June 2007 on a Court Physician (2007 Journal of Laws No. 123, item 849, as amended): A court physician while performing activities connected with issuing certificates is under legal protection as for the civil servants.
3. Article 5 paragraph 1 of the Act of 8th September 2006 on State Medical Rescue Service (2006 Journal of Laws No. 191, item 1410, as amended): "A person applying first-aid, qualified first-aid or undertaking medical rescue activities is entitled to protection (...) as for the civil servants.
It is necessary to mention that a term of "a person performing a public function" referred to in § 19 of the mentioned article 115 of the Penal Code Has a different and much wider meaning and character. It reads as follows: A person performing a public function can be a public official, a member of a self-government body, a person employed in an organizational unit using public funds, except when he performs only service-type work, and any other person whose rights and responsibilities in the scope of public activities are defined or authorized by an international act binding for the Republic of Poland. It means that a doctor without a status of a public official is allowed to perform a public function as long as he uses public funds or goods.
It was stated the most clearly by the Supreme Court in a resolution of 20th June 2001 in a case recorded under file No: I KZP 5/2001: (...) medical activities in a public health care establishment and performed within health care services financed from state funds on insured patients or other people entitled to these services on the basis of other regulations are in the scope of performing a public function (...).
In case when a doctor is considered to be a person performing a public function he can be liable for bribery (article 228 of the Penal Code), although he is not entitled to any additional legal protection on these grounds.
The author is a lawyer in the Regional Medical
Chamber in Warsaw