Shortly after the 2019 elections, Albin Kurti, the leader of Vetëvendosje, stated that one of his plans for reforming the health sector in Kosovo would be to prevent medical doctors from working in both the public and private sectors.
“Doctors have to make a choice if they want to work in the private or in the public sector,” Kurti is reported to have stated. “It is not fair that they use public hospitals to recruit patients for medical treatment after working hours in their private clinics.”
What sounds like a new idea is actually an old story that previous governments have already attempted to promote, but they have failed to do so due to constitutional constraints.
An unconstitutional proposal
In December 2012, the Assembly of Kosovo adopted a Law on Health, which was sponsored by then Minister of Health Ferid Agani. Article 41 of this law already addressed all of the issues raised by Kurti in 2019 by prohibiting medical doctors employed in the public sector from also working in the private sector, and prohibiting them from referring patients from the public sector to private clinics.
Upon adoption of the law by the Assembly of Kosovo, the Federation of Healthcare Trade Unions of Kosovo and a number of Kosovo Assembly members challenged this provision before the Constitutional Court.
They argued that this provision would violate the right to work as guaranteed by Article 49 of the Constitution and that the abuse of the health care system by a few doctors did not warrant the penalization of all doctors. In addition, they said that better public sector health care management, especially in the form of performance monitoring and evaluation, and the implementation of a health information system, would provide a more effective alternative to combating such abuse than a strict prohibition of working in both sectors.
For its part, the Ministry of Health argued that this provision would not violate the right to work because it would not prohibit doctors from exercising the medical profession. Even if there was an interference with the right to work, the Ministry argued, such interference would be justified.
The Constitution allows for restrictions of fundamental rights and freedoms guaranteed by the Constitution to the extent that this is necessary for the fulfillment of the purpose of the limitation in an open and democratic society (Art. 55). The Ministry argued that the employment of health care professionals in the public and private sector has proven to be harmful to the interests of citizens.
They further said that the purpose of the obligation for doctors to choose between employment in the public and private sectors would be to eliminate the abuse of the working position in the public sector for personal benefit, by referring patients from the public to the private sector, which is in contradiction to the patients’ rights to choose between the public and private health care services. The public interest in providing quality health care services for citizens would be more important than the right of health professionals to acquire material benefit and exercise their profession.
While the prohibition of dual medical practice may look harsh, the Ministry argued that there was no other way in which to prevent a conflict of interest in the exercising of the medical profession.
However, the Constitutional Court ultimately ruled that the provision in the Ministry’s law was unconstitutional because it violated the doctors’ fundamental right to work — it found that the prohibition to work in both the public and private sector would not be proportionate and necessary.
The key to assessing if the prohibition of working in both health care sectors would be to test if the prohibition was proportionate in relation to the public interest pursued. A very important part of the proportionality test was to assess if the public purpose of the prohibition — i.e. to guarantee quality health care for citizens — could be achieved with lesser means.
At this point the Constitutional Court noted that the prohibition curtailed opportunities for health care professionals in the public sector to supplement their incomes through additional employment in private health care institutions. The court also noted that public sector health care professionals already have a contractual obligation to be at work during regular working hours. The new law would therefore effectively only prohibit work in private health care institutions after regular working hours.
The Constitutional Court further argued that better public sector health care management would be a much more effective measure to combat referrals of patients from public to private health care institutions. Better performance monitoring, inspections, disciplinary procedures and sanctions, and a strict application of the Law on Labour — which could include a contractual prohibition of referring patients to private clinics — would achieve the same result but be less intrusive in respect of the right to work.
As a result, the Constitutional Court came to the conclusion that prohibiting work in both the public and private health sectors would not be proportionate and would therefore be a violation of the doctors’ right to work.
With the provision banning public sector doctors from working in private health care institutions determined to be invalid, the 2012 Law on Health entered into force without it, although the ban on referring patients from public to private institutions without good cause remained.
Administering the prescribed cure
The Constitutional Court not only clarified the right to work in the health care sector but it also provided any future government with guidance on how to address the problem of illicit referrals of patients and better health care performance in a manner that would not violate the Constitution.
The key message is: better health care management in public health care institutions and the implementation of health sector reform, including a functioning health information system.
The 2012 Law on Health itself already provides the basis for reform of the health sector.
There are four key elements of this reform: Firstly, the introduction of a mandatory health insurance system, including the establishment of a Health Insurance Fund. Second, a redesign of the functions of the Ministry of Health to focus on policy, regulation and monitoring.
Third, the establishment of Chambers of Healthcare Professionals to act as regulators of the medical profession. And finally, a re-design of the organizational structure of the health care institutions, including the establishment of the Kosovo Hospital and University Clinical Services (KHUCS), as providers of health care services.
The purpose of the reforms would be to firstly change the health financing system from a centralized budget model to a combined financing model that includes state budget as well as public and private health insurance, and secondly to decentralize the management of health care institutions and professional resources away from the Ministry of Health to health institutions and health professionals themselves.
The Ministry of Health would have to be reorganized to strengthen its policy-making, regulatory, evaluation and monitoring functions. The expectation is that KHUCS would have better capacities for management, planning and administration of the health care institutions that are part of it and thereby contribute to improving management efficiency of health care institutions as providers of health care services.
Functions currently exercised by the Ministry of Health for the support of operational aspects of health care institutions would be exercised by KHUCS. The intention is to establish clearer lines of responsibility and accountability and to have a better separation between policy-making at Ministry level and operations at the level of KHUCS.
With the management of hospitals being handed over to KHUCS, the Ministry would be able to focus more on its core tasks of policy-making, supporting political decision-making, defining strategic development, identifying incentives for implementation of policies, strategies, norms and standards, as well as drafting laws but also focusing on steering the reform process. This will require the establishment of a new organizational structure and professional capacities for policy-making, monitoring and oversight, including the establishment of a health information system.
Any future government that intends to reform the health care sector should perhaps focus first on implementing the ongoing reforms, instead of starting new ones.
It should make sure that the Ministry of Health is reformed in such a manner that it indeed focuses on its policy and regulatory functions, that the Chambers of Healthcare Professionals are effective, that the Health Insurance Fund is functioning and that KHUCS effectively and efficiently manages the provision of health care services, including the performance of medical professionals in the public sector.
Populist demands to restrict illicit referrals of patients to private clinics and extra work of public sector doctors in the private sector may sound very appealing and attractive but they do not address the root causes of the problems in the health care sector.
The problems are of a systemic nature and cannot be solved by popular quick fixes, which can have unintended and perverse consequences and aggravate the situation in the sector, instead of improving it.
In the case of Kosovo, the cure is relatively simple. Just implement the ongoing reforms instead of trying to reinvent the wheel.
Feature image: Arrita Katona / K2.0.