Yrkeslegitimation inom hälso- och sjukvården - En studie av återkallelseinstitutet i förhållande till offentligrättsliga principer

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: There is a presumption that holding a professional license within the health care sector guarantees that the health care practitioner has the appropriate competence and personal qualities that are required for the specific medical profession. A health care practitioner (e.g. a medical doctor) who is no longer considered to be suitable to perform health and medical services shall, in accordance with chapter 8 article 3 of the Patient Safety Act (in Swedish patientsäkerhetslagen 2010:659, PSL), have their professional license revoked by the Medical Responsibility Board (in Swedish Hälso- och sjukvårdens ansvarsnämnd, HSAN). The purpose of this protective measure is not to punish the individual health care practitioner, but to guarantee that the public trust in the health care is not damaged. However, revoking the professional license raises a conflict between the public interest of protecting the patient safety and the interest of the individual of keeping his or her professional license. The specific grounds for revoking the license are serious incompetence, serious crime, and otherwise deemed unsuitable for the profession. The interpretation of these grounds leave room for discretionary assessments, by allowing the law enforcing authority, HSAN, to do an overall assessment of all the circumstances that are held against the health care practitioner. Arbitrary decisions must be counteracted, and HSAN must therefore consider if the specific purpose of the legislation (patient safety) will be achieved by revoking the professional license in the specific case – simply put, if the interpretation of the law is appropriate. The purpose of this thesis is to demonstrate the applicable law concerning revoking a professional license within the health care sector, as stated in chapter 8 article 3 of PSL, and how the interpretation thereof, by HSAN, relates to principles of public law. An empirical study was conducted over a series of decisions taken by HSAN, which revealed specific circumstances for revoking the professional license. The assessment of the specific circumstances and the interpretation of the specific grounds for revoking the professional license, have been analyzed in relation to the requirements set out by the principles of legality, objectivity and proportionality. Due to the fact that revoking a professional license is considered to be a serious measure against the health care practitioner, the current law imposes a high burden on the authorities to prove the specific circumstances (full evidence) and that they do exist at the time of review by HSAN. The empirical study illustrates a variety of circumstances that HSAN must assess in relation to patient safety. The purpose of the legislation is clear to the law enforcing authority and the empirical study illustrates how HSAN focuses on the circumstances that are relevant and are considered to pose a threat to patient safety. Although the specific grounds leave room for discretionary assessments, the trends that have been demonstrated through the empirical study do indicate a consistent interpretation of the law, in regards to the professional license being revoked in line with the stated purpose.

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