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The Health Ombudsman – Mechanism for Patients’ Rights Protection
Summary of the public discussion held on October 11, 2005 at the Center for the Study of Democracy

The discussion was dedicated to the two Draft Laws on the Patients’ Rights and Obligations, recently submitted to the 40th National Assembly. The draft laws also provide for the establishment of the institution of the health ombudsman as a mechanism for patients’ rights protection.

Dr. Maria Yordanova, Director of the CSD Law Program, presented the yearlong work of CSD on the research of the ombudsman institutions with universal competences, as well as specialized ombudsman institutions, and the active work of the Center for the establishment of the institutions of the parliamentary ombudsman and local public mediators in Bulgaria.
She explained that the establishment of a specialized health ombudsman, envisaged in the two draft laws, provoked this gathering of expert community in order to assist the lawmaking process at early stage. The acquired experience shows that multiple draft laws on similar subjects not always leads to good results because of the mechanical merging of the existing draft laws texts, no wide public debate takes place before the voting and the results are rarely satisfactory. The idea of the creation of specialized ombudsmen, such as the healthcare ombudsman, must be re-considered as such fragmentation of the institution may not always help its efficient functioning.

Ms. Dragomira Paunova from the CSD Law Program presented to the participants the critical remarks and comments, elaborated by Law Program Task Force concerning the regulations on the healthcare ombudsman.

Ms. Rada Kulekova from the Protection of Health Confederation shared the opinion that the two Draft Laws are object of serious criticism. Nevertheless, first of all she underlined the positive fact that efforts had been made to prepare the draft laws and that those draft laws take into account to certain degree the main European acts and concepts on patients’ rights. The main weaknesses of the two draft laws, including the healthcare ombudsman provisions, are the ambiguity and incompleteness of the texts. The texts contain many repetitions and unnecessary details, while in the same time some fundamental notions lack clearness.

She gave as an example the terms patient and consumer, whose definitions in the draft laws are not adequate and do not reflect the fundamental characteristics of the concept. The notion of patient in Belgian law where the necessary conditions to be fulfilled are the professional medical care and health service was compared to the Bulgarian draft provision, which stressed on the formal interaction of the patient with the healthcare system.

The foreign experience was not fully used for the preparation of the draft laws, nor were respected the fundamental requirements for the elaboration of legislative acts such as orderliness, clear definitions of the subject, regulated area and the principles of the act. The draft laws also suffer from the multiple repletion of the statement that the state guarantees the respect of rights. This statement is left with no real meaning as there are no clear rules to guarantee the implementation and the protection of the patients’ rights.

With relation to this, the question about the means for the protection of patients’ rights remains very important. Ms. Kulekova shared the view of the CSD concerning the most inadequate provisions on the role of the non-governmental organizations working in the field of the patients’ rights protection. She pointed out the paradox that these organizations are invested with powers and obligations typical for the ombudsman institutions, as part of their voluntary work, while in the same time they are bound by the obligations to accept and examine complaints, to respect the time limits for giving reply, to provide detailed motivation of their decisions, etc.

She underlined the position of the confederation that a strong institution of a healthcare ombudsman shall be established either on national level or as a specialized deputy ombudsman at the office of the national ombudsman, taking into account the huge number of problems in the Bulgarian healthcare system.

The establishment of “hospital ombudsmen”, acting at each medical establishment, as provided by one of the draft laws, is deprived of meaning as they will not have any real power and will only provide advice to patients on writing the complaints, which renders the institution meaningless. A better idea will be the presence of persons, attached to the law department of the healthcare services, whose tasks will be to advise the patients and inform them about their rights, conduct controlling activities, etc, in order to promote the healthcare culture, although these persons can not be qualified as ombudsmen.

Ms. Rossitsa Totkova, social issues expert at the office of the Parliamentary Ombudsman, shared the opinion that the protection of the patients’ rights and the healthcare ombudsman as a specific mechanism thereof have wider dimensions as they reflect or are expected to reflect the development of the civil society in Bulgaria. The functioning of the ombudsman institution, either specialized or not, shows to what degree the citizens participate in the decisions-making process by exercising civil control and the level of preparedness of the state institutions for this type of control. Unfortunately, due to the very recent establishment of the ombudsman institution in Bulgaria, such relevant experience is not accumulated yet. Despite that fact, the institution will for sure promote the process of strengthening the civil control and make the state institutions acknowledge the criticisms and improve their work accordingly. The necessary prerequisites for achieving these results are time and two essential factors will and trust: trust to be won mostly from the citizens and also from the institutions; and will to impose such decisions and to address propositions to the institutions.

According to Ms. Totkova, among the more important issues in the healthcare is the lack of:

• criteria such as efficiency and quality of the healthcare services provided in the healthcare establishments;
• state control and the created chaos in the healthcare, as source of corruption;
• structured systems for control over the spending of funds, etc.

The issues concerning the control over the financial flows and the quality of the healthcare service are not likely to be solved by one person whose appointment in the healthcare establishment is not even compulsory. More radical actions and complex measures are needed for the protection of patients’ rights. This is required in order to insure more efficient protection of the patients’ rights and to avoid unjustified expectations and disappointment of the ombudsman institution when charged with all the weight of patients’ problems.

Ms. Valentina Taneva, Sofia Municipality Deputy Public Mediator, shared that the patients’ rights given in part one of the draft laws are in reality detracted in part two, concerning the patients’ obligations. According to Ms. Taneva in Bulgaria do not exist yet the notion of good medical practice (system of rules and acts for the service provided to the persons who entered a medical establishment, seeking urgent medical care or continuous treatment). Once established, it is not clear if the notion will be coherent with the two draft laws.

She pointed other issues not tackled by any adequate provisions in the draft laws, such as the lack of information for the patients and their unreasonable claims including concerning the mode of treatment; the surcharge of the medical staff and the insufficient opportunities for additional qualification; etc.

According to her the creation of healthcare ombudsmen in every healthcare establishment is senseless. It would be a chaotic structure within which they will not be able to interact efficiently due to the different types of healthcare establishments (university clinics, public hospitals, etc.).

The Sofia Municipality Public Mediator received five complaints concerning the healthcare, although not based on real problems and not permitting any active action.

Yet again, this is an example for the lack of information for the citizens what types of problems the ombudsman deals with and what complaints can be examined by his office and underlines the need to continue the explanatory activities which is the main role of the non-governmental organizations, and not the seizure of the ombudsman’s functions as it is provided in the draft laws.

The Chair of the Foundation for multiple sclerosis “MS Society-Bulgaria” Ms. Tatyana Ivancheva stressed that such institution is extremely needed as en expression of transparence and civil participation in the healthcare policy as every individual is affected by the healthcare system and its functioning.

She underlined again the importance of the information for the patients and the interaction between them, the non-governmental organizations and the lawmakers in order to prepare and submit to the National Assembly legal acts of higher quality.

Dr. Georgi Uzunov from “Preservation and Public Health Control” Direction of the Ministry of Health shared that the two draft laws suffer from serious weaknesses and the experts from the Ministry of Health were not adequately consulted in the preparation of the texts.

Dr. Plamen Radoslavov from the Federation of Health care Trade unions at the Confederation of Independent Syndicates in Bulgaria took the position that the two draft laws must be withdrawn and to work in the direction to implement more efficiently the existing Healthcare Act and the Health Insurance Act. According to him, the current framework is sufficient to offer real protection for the patients’ rights. Special legislation with no real value and emptied of its substance institution such as the healthcare ombudsman are deprived of sense.

As fundamental problems were pointed:

• the lack of unified conception as to the need and the substance of special draft laws for the protection of patients’ rights;
• the need of widespread informational campaign concerning the acting mechanisms for the protection of patients’ rights and the active work of the non-governmental organizations;
• the need of cooperation between the different interested authorities, institutions and organizations working in the area of the healthcare in order to reach the best possible results, including expert participation in the preparation/improvement of the two draft laws and other legal acts in the field;
• the need of serious research and implementation of the foreign experience and international standards, including the health ombudsman;
• finding the most appropriate for Bulgaria mode of functioning of the institution of the health ombudsman: creation of an office on national level with clear and detailed framework; or as a specialized part of the office of the parliamentary ombudsman.

The participants in the discussion shared the opinion that the two draft laws suffer from serious imperfections as to both the provisions regarding the health ombudsman and the general conception and substance. In the view of the participants, the draft laws must be withdrawn and substantially revised by experts before their re-examination by the relevant committees to the National Assembly; or to be withdrawn and to extend the parts of the acting legislation, concerning the patients’ rights and the mechanisms for protection.

Ms. Totkova proposed to create a workgroup which will prepare proposal for the necessary legal reforms and will seek the most appropriate way to establish the institution of the healthcare ombudsman, including through the specialization in the office of the national ombudsman. She promised on the behalf of the parliamentary ombudsman the cooperation of the institution to apply pressure to find the best solution. The proposition was accepted and the Center for the Study of Democracy in cooperation with the Parliamentary Ombudsman will jointly coordinate the future work in relation to the proposition for the establishment of the health ombudsman. The Center for the Study of Democracy will submit to the Parliamentary Healthcare Committee and the other parliamentary committees, which will examine the draft laws, the summary of the discussion and its position together with all comments and opinions, provided by the participants in the discussion and all other relevant stakeholders.
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