The Doctors Strike Back in Korea(1) – Is The Medical Service Resumption Order Justifiable under Medical Law?

As a part of the federal government’s enlargement of medical faculty admissions insurance policies, it has been determined to extend the medical faculty admissions from the present 3,000 to five,000 for the 2025 tutorial yr. In response, medical doctors, particularly interns and residents, together with these from main hospitals in Seoul and quite a few hospitals nationwide, have launched collective actions similar to strikes.

The federal government introduced its place stating that till February 29, 2024, medical doctors who’ve left the hospital won’t be held accountable for returning to their former positions. Nonetheless, in the event that they refuse to return, from March onwards, their licenses might be suspended, and authorized proceedings might be initiated. This text goals to briefly study the legitimacy of the Medical Service Resumption Order (업무개시 명령).

Legitimacy of the Medical Service Resumption Order beneath Medical Regulation

Related Provisions of Korean Medical Regulation

Medical Regulation (의료법)Article 59 (Steerage and Orders)

(1) The Minister of Well being and Welfare or a related Mayor/Do Governor could present steering or subject an order to medical establishments or medical personnel, if thought of vital for insurance policies on public well being and medical providers, or if a critical hazard happens or is more likely to happen to public well being.(2) The Minister of Well being and Welfare, a related Mayor/Do Governor or the pinnacle of a related Si/Gun/Gu could order medical personnel or founders of medical establishments to renew medical service, if there’s a cheap floor to consider that suspension of medical service by the medical personnel with none justifiable floor, or non permanent shutdown or closure of medical establishments by a bunch of the founders causes or is more likely to trigger nice difficulties in giving medical therapy to sufferers.(3) Any medical personnel or founding father of a medical establishment shall adjust to an order issued pursuant to paragraph (2) with out good trigger.

Article 88 (Penalty)

Any of the next individuals shall be punished by imprisonment with labor for no more than three years or by a wonderful not exceeding 30 million gained.1. An individual who violates Article 19, 21 (2) (together with circumstances the place Article 21 (2) applies mutatis mutandis in Article 40-2 (4)), 22 (3), 27 (3) or (4), 33 (4), the proviso of Article 35 (1), Article 38 (3), 47 (11), 59 (3), 64 (2) (together with circumstances utilized mutatis mutandis beneath Article 82 (3)), or 69 (3): Supplied, That the general public prosecution in opposition to an individual who violates Article 19, 21 (2) (together with circumstances the place Article 21 (2) applies mutatis mutandis in Article 40-2 (4)), or 69 (3) requires a legal criticism filed by a sufferer.

Punishment of medical professionals, particularly interns and residents, is predicated on the violation of the Medical Service Resumption Order beneath Article 59, paragraph 2 of the Medical Regulation. If the Medical Service Resumption Order was authorized, then beneath Article 59, paragraph 3 of the Medical Regulation, medical personnel can not refuse it with out justifiable causes.

In the event that they refuse, they might face imprisonment beneath Article 88, paragraph 1. In different phrases, if 1) the Medical Service Resumption Order is authorized and a couple of) there are not any justifiable causes for refusing it, the one who refuses the order turns into topic to punishment. Nonetheless, at current, medical professionals, particularly interns and residents are usually not caring for sufferers in defiance of the Medical Service Resumption Order, and it’s evident that important disruption to affected person care is happening. 

Is the Medical Service Resumption Order Justifiable beneath Medical Regulation?

To find out whether or not the Medical Service Resumption Order beneath Article 59, paragraph 2 of the Medical Regulation is authorized, 4 standards have to be met.

Firstly, it’s vital to look at whether or not interns and residents are the topic of the Medical Service Resumption Order. Article 59, paragraph 2 of the Medical Regulation solely mentions medical personnel (의료인) and medical establishment operators (의료기관 개설자) as topics of the Medical Service Resumption Order, with out some other restrictions. 

Nonetheless, as interns and residents are thought of medical personnel beneath Article 2, paragraph 1 of the Medical Regulation, it’s clear they’re the topic of the Medical Service Resumption Order is in response to the Medical Regulation.

Article 2 (Medical Personnel)The time period “medical personnel” on this Act means a doctor, a dentist, a health care provider of Korean medication, a midwife or a nurse who holds a license granted by the Minister of Well being and Welfare.

Furthermore, upon nearer examination of the provisions of the Medical Regulation, it may be seen that the federal government has meticulously ready for varied contingencies. Once more, referring to Article 59 paragraph 2 of the Medical Regulation talked about in a., it reads as follows:

“The Minister of Well being and Welfare, a related Mayor/Do Governor or the pinnacle of a related Si/Gun/Gu could order medical personnel or founders of medical establishments to renew medical service, if there’s a cheap floor to consider that suspension of medical service by the medical personnel with none justifiable floor, or non permanent shutdown or closure of medical establishments by a bunch of the founders causes or is more likely to trigger nice difficulties in giving medical therapy to sufferers.”

Though not explicitly said, the phrase “suspension of medical service by the medical personnel with none justifiable floor,” logically presupposes medical personnel who’ve been offering therapy as much as that time. Due to this fact, deciphering this inversely means that the order can’t be issued to medical personnel who’ve already retired or ceased follow.

Thus, it may be thought of that when there have been precursors to collective actions, the federal government issued a Prohibition Order in opposition to resignations (사직서 수리 금지 명령) to every medical establishment beneath Article 59 paragraph 1 of the Medical Regulation and issued Medical Service Upkeep Order (업무 유지 명령) to interns and residents earlier than the Medical Service Resumption Order. In different phrases, the goal was to stop interns and residents from leaving hospitals legally earlier than the issuance of the Medical Service Resumption Order.

Secondly, it have to be examined whether or not important disruption to affected person care has occurred because of the cessation of therapy. Given the present scenario the place even important staffing is missing and sufferers are experiencing deadly penalties similar to dying, further rationalization on this matter appears pointless.

Thirdly, there isn’t a justifiable purpose for the cessation of therapy. Certainly, there are nearly no acknowledged circumstances the place justifiable causes have been acknowledged. Due to this fact, at current, there may be hardly any room to justify the refusal to adjust to the Medical Service Resumption Order.

Nonetheless, theoretically talking, to justify the refusal to conform, it have to be thought of whether or not 1) there have been insurmountable causes (similar to damage, dying of a member of the family, and so forth.) and a couple of) whether or not the pursuits pursued by refusing the order outweigh the pursuits protected by the Medical Service Resumption Order.

Nonetheless, it seems extremely unlikely that insurmountable causes might be acknowledged. Firstly, medical associations such because the Korean Medical Affiliation (대한의사협회) have been holding conferences to oppose the rise in medical faculty admissions even earlier than the federal government announcement, and even earlier than the collective actions of interns and residents, there have been inside discussions.

Moreover, the explanations put ahead by medical doctors as grounds for refusing the Medical Service Resumption Order, similar to “if a flood of medical doctors from elevated admissions floods in ten years, the medical system of South Korea will collapse” or “if the obligatory healthcare package deal passes, the medical market will collapse,” are summary and unsure causes which will or could not happen within the distant future. Nonetheless, the dangers sufferers face by not receiving therapy instantly, similar to dying or everlasting incapacity, are concrete, important, and foreseeable dangers.

In abstract, within the present circumstances, it seems unlikely that insurmountable causes exist, and the pursuits being infringed upon are considerably better than the pursuits pursued by interns and residents, so there may be hardly any justification for refusing the Medical Service Resumption Order.

Fourthly, it is usually essential to look at whether or not the Medical Service Resumption Order was appropriately served. It is a essential component when figuring out whether or not varied tendencies issued by the federal government to the general public (similar to license revocation, demolition orders, fines, and so forth.) are authorized.

Administrative Procedures Act (행정절차법)Article 14 (Service)

(3)Service via data and communications networks shall be made solely the place the particular person to obtain service offers consent thereto. In such circumstances, the particular person to obtain service shall designate the electronic message handle, and so forth. to which service is to be made.(4)In any of the next circumstances, public announcement shall be made in not less than one of many means such because the Official Gazette bulletins, public gazette bulletins, bulletin board postings, and day by day newspaper bulletins in addition to the Web web sites postings, in order that the particular person to obtain service could readily be told:1.The place the domicile, and so forth. of the particular person to obtain service is unascertainable by odd strategies;2.The place service is unimaginable.

To grasp this precisely, it’s essential to briefly study Korea’s Administrative Procedures Act. Typically, the Administrative Procedures Act doesn’t permit supply on-line with out the consent of the events. In different phrases, supply have to be made by mail, and supply through textual content messages will not be potential except there are particular circumstances. Due to this fact, there’s a rumor that one may evade a Medical Service Resumption Order by, for instance, pretending to not be house or not answering the door.

 Article 24 (Strategies of Inclinations)

(2)However paragraph (1), the place any pressing disposition is required for public security or welfare, or the place issues are insignificant, a disposition could also be rendered by means apart from paperwork, similar to oral explanations, phone, cell textual content message, facsimile, or e-mail. In such circumstances, if requested by a celebration, paperwork relating to such disposition shall be delivered at once.

Nonetheless, with the expertise of the worldwide Covid-19 pandemic, a brand new provision has been added to the Administrative Procedures Act, specifically, emergency tendencies for public security or welfare beneath Article 24, paragraph 2. 

Consequently, even when sending a Medical Service Resumption Order by mail will not be possible, tendencies for public security or welfare may be made through textual content, KakaoTalk, fax, e mail, and so forth. Naturally, this extends to Medical Service Resumption Order beneath medical legislation as effectively.

Even when the present scenario doesn’t essentially pose an issue to public security or welfare, beneath Article 14 paragraph 2 of the Administrative Procedures Act, if supply will not be made, it may be dealt with by asserting it on the Web.

Conclusion

In conclusion, the federal government’s Medical Service Resumption Order beneath medical legislation is authorized. Contemplating the topic of the Medical Service Resumption Order, the numerous disruption to affected person care, the absence of justifiable causes for discontinuing therapy, and the authorized supply, it seems to be so. Within the subsequent half, we’ll study the civil legislation points associated to medical doctors’ collective actions.