On September 14th, 2017 the Department of Health of the Dnipro City Council adopted Order "On Restrictions Established for Medical Workers in the Performance of Their Professional Activities" No. 473 (hereinafter - the Order). In this regard, we asked for a comment from Legal Alliance Company in order to have legal assessment of this document. Below is a comment by Andrii Gorbatenko, associated partner at Legal Alliance Company, the head of the practice of antitrust and competition law, a representative of AIPM Ukraine in the Public Council of the Antimonopoly Committee of Ukraine.
The Order, which establishes restrictions related to the visits of medical representatives to healthcare facilities (hereinafter referred to as "healthcare facilities"), raised a storm of discussions.
In addition to the fact that this document rigidly changes the existing practice in the market, a lot of discussions are also caused by doubts about its legality.
The Order prohibits chief physicians almost the same that was previously prohibited by Article 78-1 of the Law of Ukraine "Fundamentals of Ukrainian Health Legislation" (hereinafter - the Law). For example, to obtain undue advantage from manufacturers or sellers of medicines and medical products or to obtain samples of medicines and medical products from them, etc.
However, along with duplication of restrictions already established in the legislation, the Order imposes new bans that clearly go beyond the limitations established by Article 78-1 of the Law. A special resonance and wide publicity was caused by a ban connected with visits of medical representatives to the healthcare facilities of the city.
By the Order, the Department of Health of the Dnipro City Council prohibits chief physicians from communicating with certain enterprises and their representatives during working hours.
We all, of course, understand that it concerns medical representatives. However, the new norm is formulated by the Department quite widely and makes us come to the conclusion that any communication of the chief physicians with business entities that produce or sell medicines, medical products, dietary supplements and food products for special dietary nutrition and others (note by the author: the list is non-exhaustive) is prohibited during working hours. Apparently, communication about local procurement of medicines will have to be done outside of working hours. We hope that this prohibition does not apply to the provision of medical care to the above-mentioned persons. Prohibition of the Department certainly extends only to health facilities controlled by it. According to the information posted on the Dnipro City Council website, there are only 13 such healthcare institutions.
The remaining paragraphs of the Order do not indicate specific recipients, so who they refer to can only be guessed.
Paragraph 6 of the Order obliges (probably the municipal healthcare facilities controlled by the Department) to issue orders on the restrictions imposed on healthcare professionals during exercise of their professional activities. Paragraph 7 sets an obligation to provide copies of such orders to the Department.
If we take into account the Preamble of the Order, which refers to Article 78-1 of the Law, which establishes the same restrictions for healthcare professionals during their professional activities, it can be concluded that the performers of this paragraph (probably municipal healthcare facilities controlled by the Department) must issue internal orders for healthcare facilities, which will duplicate the restrictions established by the Law. The task to extend the new restrictions imposed in the Order on the staff of a healthcare facility by the Department to the main doctors is not obvious.
In addition, according to the Order the validity of paragraphs 6 and 7 expires on October 10th, 2017 and October 12th, 2017 (respectively). That is, by the time this comment was written, the paragraphs had already lost their validity.
In general, I would like to welcome the initiative to settle the issue of interaction of medical representatives and healthcare professionals, but also to emphasize that this process should take place exclusively within the framework and in accordance with Ukrainian legislation.
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