On 16 July 2020, barrister Paweł Sowisło, attorney-at-law Urszula Nowaczyk and attorney-at-law Anna Piotrowska-Musioł delivered a lecture in the form of a webinar on the amendment to Article 37a of the Penal Code amending, as of 24 June, the rules on the imposition of penalties by courts for offences committed in connection with practicing medical professions, which arouse numerous controversies in the medical community.
The lecture was delivered at the invitation of Professor Jarosław Szydłowski, Chairman of the Clinician Council and Head of the Children’s Otolaryngology Clinic of the Karol Jonscher Clinical Hospital of the Poznań University of Medical Sciences for members of the Clinician Council of this Hospital.
During the meeting, issues of extreme importance for doctors were raised concerning the mode and effects of introducing changes to the Penal Code, which took place “on the occasion” of the adoption of the so-called Shield 4.0 – a special law dedicated to counteracting the effects of COVID-19. As a result of the amendment, which covers many types of crimes, including, for example, the act of a doctor who inadvertently exposes a patient to direct danger of loss of life or serious damage to health as a result of a medical error, the freedom to rule on such matters has been significantly restricted. The court is obliged to apply the penalty of imprisonment as a priority, instead of non-custodial penalties (fine, restriction of liberty) provided for as an alternative. The use of prison sentences has, in turn, been made contingent upon the need for an additional penal measure – in the case of doctors, this is usually an extremely severe suspension of the licence to practice medicine.
At the same time, it was impossible to ignore the judgment, which was issued by the Constitutional Tribunal on 14 July 2020, declaring unconstitutional a similar provision, which was adopted by the Act of 13 June 2019 amending the Penal Code and Certain Other Acts referred to the Tribunal by the President of the Republic of Poland.
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