Mediation has a chance to become a applicable institution for the work of doctors and dentists. The RPO, taking into account its actions to date on the dissemination of mediation in matters of professional work of doctors and dentists (reference of the RPO of 27.7.2022 to the Minister of wellness and attached to this letter the position of the Chief Ombudsman of the Professional work of the Chief Medical Chamber), addressed his position to the MZ on the appropriateness of legislative work to adopt proposed legal changes in the mediation institution in proceedings concerning professional work of doctors and dentists.
As early as 2022, RPO Marcin Wiązek asked wellness minister Adam Niedzielski to consider legislative work in order to adopt changes proposed by the Chief Ombudsman of the Chief Medical Chamber regarding mediation in proceedings concerning professional work of doctors and dentists. The aim was to introduce in the Act of 2.12.2009 on Medical Chambers (Journal of Laws of 2021 item 1342; hereafter: Chambers) the anticipation for the Ombudsman or the medical court to discontinue proceedings in the event of a settlement before the mediator of the medical chamber.
Mediations on the professional work of doctors
The institution of mediation shall be governed in proceedings concerning the professional work of doctors and dentists referred to in the Chamber. The parties to proceedings concerning the professional work of doctors shall be the injured organization and the doctor concerned. Pursuant to Article 113(1) of the Chamber, the ombudsman of professional liability in the course of the investigation procedure or the medical court in the course of proceedings before the medical court may, on initiative or with the agreement of the parties, mention the case to mediation proceedings between the victim and the accused. The mediator shall, after conducting the mediation procedure, draw up a study on its conduct and results, which shall be annexed to the case file. The provisions of the NCPs shall apply mutatis mutandis to mediation proceedings.
Given the content of the provisions on mediation proceedings, they do not find the consequences of the settlement before the mediator. Following the mention in Article 112(2) of the Chamber, the Board of Appeal shall give the anticipation to mitigate the punishment imposed by the medical court. In accordance with Article 53(2b)(5) and (6) of the CCC, mitigating circumstances constitute, in particular, reconciliation with the victim and compensation for harm caused by the offence or compensation for harm caused by the offence.
Statistics in favour of mediation
At present, however, the mediation institution, known as the civilian procedure for damages and/or redress, is not full utilized in the professional work of doctors and dentists. The statistic show its marginal application, but, to be stressed, where it was conducted, it led to a settlement in 70% of cases.
The RPO reiterated its request to the Minister of wellness to undertake legislative work which would otherwise find the function and result of mediation in disciplinary proceedings against doctors and dentists. The aim is to specify precisely the effects of mediation, which is crucial for the parties to the proceedings. It proposes introducing in the Medical Chambers Act a solution allowing for the dismissal of proceedings by a professional liability officer or a medical court if there is reconciliation with the victim and compensation for harm or compensation for harm caused. Of course, this would require an assessment of professional work or a medical court. Before deciding to discontinue proceedings, the nature of the case and the degree of the harm caused would besides be assessed.
Mediation at an earlier phase of the procedure
In view of the above, the proposals for legislative amendments to the mediation institution in proceedings concerning the professional work of doctors and dentists should be full approved. Mediation is an alternate way of resolving disputes, which means that in matters of professional work too, wider application would be desirable for both patients and doctors and dentists.
The proposal to introduce the anticipation of mediation at an earlier phase of the procedure is justified. presently in the light of Article 113(1) of the House. The typical of professional work in the investigation procedure or the medical court at the time of proceedings before the medical court may, on initiative or with the agreement of the parties, mention the case to mediation proceedings between the victim and the defendant. There is so no obstacle to the parties being able to participate in mediation at an earlier phase of the proceeding.
The wider application of this institution may be affected by the introduction of a condition for termination of proceedings on professional work in the event of a settlement before the mediator of the medical chamber. However, this would require a fresh premise in Article 63 of the House. The conclusion of a settlement before the mediator of the medical chamber would constitute a negative reason for the initiation of proceedings concerning the professional work of doctors. In practice, this would mean that the procedures for the professional work of doctors are not initiated and that the proceedings initiated are terminated. Of course, according to the proposals, redemption would be optional. Which is, of course, justified in view of the erstwhile decision on the appropriateness of the discharge of professional liability by the Ombudsman or the court. The nature of the case and the degree of the harm caused would be taken into account.
The proposed changes are an chance for a wider usage of mediation institutions besides in matters of professional work of doctors and dentists.
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