APC: Rules on physicians' secondary employment should be incorporated into the law to prevent directors' discretionary decision-making

The Agency for Prevention of Corruption (APC) has assessed that the current Rulebook on Secondary Employment of Healthcare Professionals is formally aligned with the Law on Healthcare, but that the existing regulatory framework leaves room for subjective decision-making, differing interpretations, and potential corruption risks. For this reason, the Agency recommends in its opinion that the key conditions, restrictions, and rules governing the approval of secondary employment should no longer be regulated primarily through a rulebook, but instead be clearly prescribed by law.

The opinion, signed by APC Director Kristina Braletić, was adopted ex officio following an initiative submitted by the Ministry of Health on 8 July this year, requesting an assessment of whether the Rulebook on Secondary Employment of Healthcare Professionals and Healthcare Associates complies with the rules for eliminating corruption risks in legislation.

Underdeveloped legal framework

The procedure was conducted pursuant to Articles 82 and 83 of the Law on Prevention of Corruption, which authorize the APC to issue opinions aimed at strengthening corruption prevention and to analyse corruption risks in laws and other regulations. During the procedure, the Agency examined the Law on Healthcare, particularly Article 101 governing secondary employment, as well as the Rulebook adopted by the Ministry of Health at the end of June.

Although it concluded that the Rulebook is formally and legally aligned with the Law and that certain provisions contribute to a more precise implementation of statutory requirements, the APC warns that the legal framework itself is insufficiently developed with regard to decision-making on secondary employment.

- The most significant issue concerns the broad discretionary powers granted to directors of healthcare institutions when deciding whether to approve secondary employment. The Law does not establish clear criteria for granting or refusing consent, while the Rulebook, although specifying the circumstances to be taken into account, fails to define sufficiently precise standards for assessing those circumstances - the opinion states.

The APC further notes that the Law allows directors of healthcare institutions to approve or deny requests for secondary employment without clearly prescribed criteria, deadlines, or an obligation to provide reasons for their decisions.

- The absence of clearly established conditions and criteria for decision-making may result in inconsistent treatment in comparable situations and leave room for subjective assessment - the Agency warns.

At the same time, the APC considers that the fundamental criteria for granting or refusing consent, the obligation to provide a reasoned decision, and the deadlines for decision-making should be regulated by law, while the Rulebook should govern only their practical implementation.

Objections and shortcomings

One of the Agency's principal concerns relates to insufficiently developed mechanisms for preventing conflicts of interest. It notes that the current Law contains no specific provisions designed to prevent situations in which healthcare professionals may face conflicts of interest arising from simultaneous employment in the public and private sectors.

According to the opinion, the Law should prohibit practices whereby patients are referred or otherwise directed to healthcare institutions or other entities where a healthcare professional performs secondary employment, as well as establish other fundamental rules ensuring that secondary employment does not compromise the impartial, conscientious, and professional performance of duties within public healthcare institutions.

- Their more detailed regulation could be provided through secondary legislation adopted on the basis of a clearly defined legal framework - the opinion adds.

The Agency also points to several specific shortcomings of the Rulebook. As an example, it cites the provision allowing secondary employment where it „does not affect the organisation of work“ of the healthcare institution, finding that this standard is not defined with sufficient precision.

- The absence of a more precise normative definition of this condition may lead to differing interpretations and inconsistent application in practice - the APC states, recommending that objective criteria be prescribed for assessing whether secondary employment affects the functioning of a healthcare institution.

A similar concern applies to the provisions regulating quality-of-care indicators and waiting lists. The Agency believes that it is insufficiently clear how these indicators will be used in deciding applications for secondary employment or what consequences poor performance indicators or excessive workloads within healthcare institutions should have.

The APC also identifies as an additional corruption risk the fact that the Rulebook does not require verification of any ownership, managerial, family, or other relationships between the healthcare professional, or persons associated with them, and the entity where the secondary employment is performed. Nor does it require consideration of circumstances that might indicate the existence of a special relationship between the applicant and the director responsible for deciding whether to grant consent.

- Given that these circumstances may be relevant for assessing potential conflicts of interest and ensuring impartial decision-making, it would be useful to further regulate the obligation to disclose and verify relevant facts that may affect the objectivity of the consent procedure. This would enhance the transparency of the process and further strengthen mechanisms for preventing situations in which private or other interests could influence decisions regarding secondary employment - the APC recommends.

The Agency also considers it problematic that the Rulebook regulates in detail the procedure for granting consent but contains almost no provisions governing situations where a director rejects an application.

- There is no obligation to issue a reasoned decision refusing consent, nor are the elements such a decision should contain prescribed, or any possibility or procedure established for reviewing such a decision - the opinion warns.

Clarifying the regulatory framework

In addition, the APC recalls that the Law requires healthcare institutions to maintain and publish records of employees engaged in secondary employment, but does not provide for liability if this obligation is not fulfilled. It therefore recommends introducing clearer provisions governing the consequences of failing to publish or update such information.

In its concluding observations, the Agency states that the entire regulatory framework should be further clarified in order to reduce the scope for arbitrary decision-making and strengthen legal certainty.

- With a view to strengthening the integrity and transparency of the system governing secondary employment, it is recommended that the conditions for granting consent be regulated more precisely, that the decision-making procedure be improved, that mechanisms for preventing conflicts of interest be strengthened, and that responsibility for acting contrary to the prescribed obligations be more clearly defined - the APC concludes in its opinion.