2018-08-16

West Bank and Gaza Strip

West Bank / Gaza / position paper

MUSAWA's criticism of the draft of the Amendment of the Decree-law Medical & Health Protection

The Respectable members of the Independent Commission for Human Rights/ Ramallah

The respectable medical association representative in the committee of preparing the draft Decree-Law on Medical & Health Protection/ Ramallah 
 
The Palestinian center for the independence of the judiciary and the legal profession, MUSAWA, thank you for considering its remarks on the draft of the decree law on Medical & Health Protection, and for providing us with the final draft of the mentioned law, expressing our remarks on the final draft after a careful study as follows:  

1-    We suggest adding “and the surgeries with its different types, procedures and methods” to the professional standards’ definition that is mentioned in the law, which comes right after “blood transfusion” that is mentioned in the fourth line of the definition.  

2-    Adding “The natural and/or legal” to the beginning of the medical & health services provider’s definition, before the word “institution” which is mentioned in the first article of the law. 

3-    Adjusting the definition of “medical complications” that is provided in the first article of the law, as following “The medical condition that appears on the patient during, or because of having the medical-care services, or depriving him/her of them by the service provider or at the place of health-care provision.

4-    Adding “or by abstaining” to the definition of medical error, after the word “by negligence” that is mentioned in the first line of the definition, as well as omitting this sentence “with taking into account the working conditions under non-exceptional conditions” from the mentioned definition. 

5-    Replacing “the doctor informs” that is mentioned in the first line of the fifth article, with “the doctor has to inform”.
 In addition, replacing “within acceptable limits both scientifically and internationally” with “according to the scientifically and internationally followed standards”.

 Moreover, replacing “in the case of unavailability of the above mentioned, a medical committee (consists of two doctors at least) approval has to be taken for starting the needed medical procedures; to overcome danger, after consulting one doctor at least, on condition that any of the above mentioned has to be informed with it”, with “in case of need to overcome danger that threatens the health-care receiver, the health care provider- doctor should do the necessary medical procedure to stop danger, after consulting one specialized doctor at least, and to inform the above mentioned about it”.

6-    Omitting these words “within the conditions and the available work environment” from the second paragraph of the sixth article, and omitting these words “trending in this regard and according” that are mentioned in the second article; so the provided paragraph becomes “performing the work duties in a way that ensures the service receiver’s rest, and to show due diligence according to the professional rules, and the scientific & international principles”.

7-    Adding, “Except in a condition that endangered his/her life or his/her physical safety” to the final part of the seventh article or to move it to the beginning of the mentioned article, and to replace “only in” with “except”. 
8-    Omitting the sentence “or his/her practical experience, and the medical procedure’s level of precision and importance” from the first paragraph of the 11th article. 

9-    Adding “A representative of the service receivers’ union, or a representative of the Consumer Protection Body” to the first paragraph of the 14th article.   

10-    Omitting “under the conditions and the available working environment and outside and under non-exceptional conditions” that is mentioned in the first paragraph of the 15th article, and replacing it with “and to detect the ratio of invalidity among the service receivers”, and adding “on condition that he/she should have a relevant competence” after “Chair of the Committee” that is mentioned in the second paragraph of the 15th article. In addition, to add, “With bearing in mind the rebuttable presumption principle” to the third paragraph of the 15th article. And to add a fourth paragraph to the 15th article to provide for “The decisions issued by the committee should not be immunized against the judiciary supervision, and it should be subject to appeal according to the rules and principles of the administrative decisions appeal, with bearing in mind what is mentioned in the third paragraph of the 16th article”. 

11-    Omitting “under the conditions and the available working environment and outside and under non-exceptional conditions” that is mentioned at the end of the first paragraph of the 16th article.

12-    Replacing “ with no prejudice” with “while not prejudicing” that is mentioned in the third paragraph of the 21st article, and to omit “ severe” wherever mentioned in the mentioned article, and to omit the whole 4th paragraph of the same article.

13-    Omitting the fourth paragraph of the 22nd article, and replacing it with” The rules governing the fault liability including fault and damage and the causality between them, also applies to the medical and health liability”, and to omit the fifth paragraph of the same article.  

14-    Omitting “or any other known complications” from the first paragraph of the 23d article, and replacing it with “that the service provider is not involved in”, and to omit the third paragraph of the mentioned article. 

15-    MUSAWA believes that what is mentioned in the 25th article on the supplier’s, distributor’s or producer’s responsibility over the side effects caused by a flaw in the medicine, which is listed under “a hidden defect in the product” which obliges to clarify the meaning of “defect”, and the conditions of obliging the supplier and the producer to pay them for the, like to prove knowledge, or involvement in producing the faulty product. 

16-    Omitting the word “severe” from wherever mentioned in the 27th article.

17-    Omitting the third paragraph of the 28th article, and replacing it with “the competent court has the right to estimate the amount of compensation for the medical error after proving it before the service provider”.

18-    Omitting “not explicitly” that is mentioned in the first paragraph of the 23d article. 

19-    Replacing “approving” with “publishing” that is mentioned in the 27th article. 
  
 Hoping that you take our remarks into consideration, and looking forward to developing the collaboration links between us. 

With All Due Respect   

Issued on 16/8/2018                                                                     MUSAWA