Legal position of supply doctors unclear
Ministry of Social Affairs and Health should have been more active in its measures to redress the situation
When supply doctors (i.e. those employed by an outside agency) perform, in health centres for example, tasks that involve the exercise of public power, the situation is unlawful, points out former Ombudsman Riitta-Leena Paunio, who is substituting for a Deputy-Ombudsman. A person who exercises public power must, under the Local Government Act, hold an official post in an employment relationship with the municipality. Supply doctors, who are employed by private companies that broker medical personnel, do not meet this requirement.
She has studied the legal position of supply doctors and their tasks in municipal health care. It has emerged from the study that, in addition to their other duties, supply doctors perform tasks that involve exercising public power. Tasks of this kind are those that involve an intervention in fundamental rights, for example when they decide to isolate a patient under the provisions of the Infectious Diseases Act or send a patient for observation under the Mental Health Act.
Legislation must be explicated
Acting Deputy-Ombudsman Paunio emphasises that if municipal health care tasks involving the exercise of public power are entrusted to supply doctors, they should be given authorisation to perform these tasks through specific legal provisions. This requires also amendment of the Local Government Act and an expansion of the scope of official accountability to include supply doctors who exercise public power.
In addition, in her view, legislation should be enacted to define what tasks performed by doctors in municipal health care involve exercise of public power or significant exercise of public power.
In the same conjunction, it may be advisable to assess what kind of responsibility supply doctors working in municipal health care should bear when they perform tasks of a kind that do not involve exercising public power.
Responsibility for general oversight of health care is vested in the Ministry of Social Affairs and Health
In the view of Acting Deputy-Ombudsman Paunio, this task would have required the Ministry to have already earlier been more active in taking measures to rectify this unlawful situation.
The Ombudsman had already in 2007 asked the Ministry to adopt a stance on the problems that arise when supply doctors are used in health centres. The National Supervisory Authority for Welfare and Health (Valvira) and the State Provincial Offices had in 2008 called on the Ministry to adopt a position on the problems concerning the use of rented doctors. This proposal did not lead to measures at the Ministry.
Acting Deputy-Ombudsman Paunio has now asked the Ministry to inform her, by the end of September 2010, what measures her decision has prompted.
The Ombudsman, as an overseer of legality, does not comment on the way health care services are arranged.
Additional information will be provided by Senior Legal Adviser
Kaija Tanttinen-Laakkonen, tel. + 358 (0)9 4321.