In the opinion of the Human Rights Ombudsman of the Republic of Slovenia, the regulation that allows the Commission for the Protection of Patients' Rights to avoid handling cases by referring them to various inspectorates is inadequate. The Ministry of Health has accepted the position and committed to amending the legislation.

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A complainant informed the Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) of the decision of the Commission for the Protection of Patients' Rights of the Republic of Slovenia (the Commission), which referred his request to the Health Inspectorate of the Republic of Slovenia (the Inspectorate) for consideration and did not consider it. Namely, the complainant addressed to the Inspectorate a request for reconsideration under the Patient Rights Act (ZPacP) in connection with a medical treatment procedure under the Comprehensive Treatment of Preschool Children with Special Needs Act (ZOPOPP). The provision of Paragraph 7 of Article 12 of the ZOPOPP explicitly stipulates that parents may exercise their rights in accordance with the law governing patients' rights if they do not agree with the treatment under the ZOPOPP.

The Ombudsman conducted several inquiries with the Commission, against which an allegation of interference with individual rights had been made, and with the Ministry of Health (MZ), which is responsible for the protection of patients’ rights.

The Commission explained that, in accordance with Article 21 of the ZOPOPP, supervision of the implementation of early intervention falls under the competence of the inspectorates for health care, education, or social welfare. The Commission added that parallel proceedings before the Commission are not possible, since the first indent of the Paragraph 2 of Article 69 of the Patients’ Rights Act (ZPacP) stipulates that the Commission must dismiss a case if judicial or administrative proceedings are already underway regarding the matter.

In its response, the MZ explained, among other things, that the provision of the first indent of Paragraph 2 of Article 69 of the ZPacP applies to all cases where the inspection procedure is already underway at the time of receipt of the second request, and also in cases where the Commission only transfers the case to the competent inspection after receiving the second request. In the opinion of the MZ, the transfer of the request to the competent inspectorate is sufficient, and not proof that the inspectorate has legally formally initiated the inspection procedure.

The Ombudsman informed both bodies of his opinion that the Commission is incorrectly applying the provision of Article 69 of the ZPacP, since in the Ombudsman's opinion, only judicial and administrative proceedings in which the applicant for other requests under the ZPacP would have the status of a party and would thus have the guaranteed possibility of appropriate protection and enforcement of rights could be considered judicial and administrative proceedings within the meaning of the provision of Article 69 of the ZPacP. In accordance with the provision of Paragraph 4 of Article 24 of the Inspection Act, the reporting party or the affected person does not have the status of a party in an inspection procedure. The status of a party in an administrative procedure is held by only the person whose rights, obligations, or legal benefits are being decided in the specific administrative procedure (e.g. decision of the Constitutional Court of the Republic of Slovenia Up-88/94, 31/5/1996). The inspection procedure is intended to protect the public interest (e.g. decision of the Constitutional Court of the Republic of Slovenia Up-3/97, 15/7/1999). In an inspection procedure, only the liable party has the status of a party. Measures taken in the inspection procedure decide on the rights, duties, and legal interests of supervised persons (e.g. judgment of the Administrative Court of the Republic of Slovenia I U 840/2021-12, 24/10/2023).

The text of the Proposal for the Patients’ Rights Act, which the Government of the Republic of Slovenia submitted to the National Assembly of the Republic of Slovenia for consideration (EVA: 2005-2711-0080) on 7 June 2007, states, among other things, that the ZPacP implements simplified procedures that would enable quick and easy settlement of both parties in the procedure, thereby avoiding the high costs of other procedures. In the types of supervision that existed at that time, it was recognised that the patient's role was negligible, since he does not appear as a subject – an active participant in them, but rather as an object. The ZPacP sought to ensure the active participation of the affected patient (the patient as a "party") in the newly envisaged procedures for exercising patients’ rights.

The proposer of the ZPacP wanted to ensure a contribution to the long-term reduction of patient complaints and related costs, which means that the law, by more clearly defining the content of individual rights, is primarily aimed at preventing violations or disputes between patients and healthcare professionals or healthcare associates. On the other hand, the regulated procedural aspect of protecting patient rights contributes to the secondary goal of the bill, which is the effective resolution of violations or disputes in the event that they occur. The purpose of the ZPacP was to ensure that patients' rights are precisely defined, and affected individuals, i.e. patients, and in individual cases also their relatives, have the right to have their requests or complaints dealt with quickly and efficiently. If the disagreement is not resolved in the procedure for the first hearing of the violation before the competent person (preliminary or first-instance procedure), the complaint will be dealt with by a Commission.

Based on the above, the Ombudsman believes that a possible inspection procedure should not be a reason for rejecting a request before the Commission. This is all the more true in cases where an inspection procedure has not been initiated at all, given the position of the MZ, which, according to the provision of the first indent of Paragraph 2 of Article 69 of the ZPacP, the mere submission of the request to the competent inspection body, and not even the initiation of an inspection procedure, is sufficient to reject a request.

The Ombudsman also notes that, according to the provision of Article 85 of the ZPacP and taking into account the controversial position of the Commission and the MZ, the Commission would not have jurisdiction over most violations of patients' rights under the ZPacP at all, since the inspectorates are also competent to deal with the same violations, and therefore, in the Ombudsman's opinion, the legally envisaged arrangement of two-level protection of rights would be completely undermined in this regard.

Regarding the highlighted issue, the Ombudsman also consulted with representatives of patients’ rights and the Administrative Inspectorate of the Public Sector Inspectorate, who share the Ombudsman's opinion that the current practice or applicable legal regulations are not appropriate and that appropriate consideration of other requests under the ZPacP should be ensured even in cases where the inspectorate is also competent to address the same issue.

The Ombudsman proposed that the MZ ensure the proper implementation of the applicable ZPacP, or, if it believes that the Ombudsman's views are not supported by applicable legislation, that the following text be added at the end of the text of the first indent of Paragraph 2 of Article 69 of the ZPacP: "in which the patient acts as a party."

At the Ombudsman's suggestion, the MZ explained that it considers the proposal to amend the first indent of Paragraph 2 of Article 69 of the ZPacP to be reasonable and legally appropriate, as it provides a clearer legal basis for the exercise of patients' rights. In addition to the above, the MZ notes that additional amendments should be considered. Amendments to the entire second paragraph of Article 69 of the ZPacP would undoubtedly contribute to greater legal certainty and more uniform practice in handling patient requests. The latter will also be included in the substantive consideration within the working group for preparing amendments and supplements to the ZPacP, in order to ensure a comprehensive and legally harmonised approach and to prevent potential conflicts of jurisdiction.

In relation to the Ombudsman's opinion, the Commission explained that it will strive to take into account the Ombudsman's opinion in its further work, while simultaneously taking into account the relevant legal provisions of both the ZPacP and the ZOPOPP. In relation to the Ombudsman's opinion that the Commission is incorrectly applying Article 69 of the ZPacP, the Commission believes that the Ombudsman is not competent to interpret the ZPacP, not even in specific cases, but that the administrative court is competent to interpret it.

The Ombudsman will monitor the further work of the MZ regarding the announced changes to the content of the ZPacP. 9.4-64/2024