Turkey: Changes To The Working Principles Of Healthcare Professionals; A Conclusion To A Contentious Issue?

INTRODUCTION

The legal provisions regulating the working principles of healthcare professionals working in state institutions in Turkey has been an oft debated issue, particularly in recent years.

Decree Law 650 introduced in 2011 had sought to implement substantial restrictions on state healthcare professionals engaging in secondary income-generating activities by changing the relevant provisions of the three main laws regulating this area. However, said provisions of the Decree Law were overruled by the Constitutional Court with the decision coming into effect on July 1, 2013.

Undeterred by the return to the system of state employed healthcare professional being allowed to engage in secondary activities outside of their working hours that was enforced by the decision of the Constitutional Court, the current Turkish government has once again set out to implement a regime of restrictions on the working principles of state employed healthcare professionals. To this end, on November 25 2013 the "Draft Law Regarding Changes to the Decree Law on the Organization and Duties of the Ministry of Health and Associated Institutions and Other Laws"("Healthcare Law") was approved by the Commission on Health, Family, Employment and Social Affairs of the Grand National Assembly of Turkey ("TBMM"). It was subsequently debated by the General Assembly, where it was voted on a passed on January 2 2014. The passed Healthcare Law officially came into effect upon publication on January 18 2014.

DECREE LAW 650 OVERRULING

The changes proposed by Decree Law 650 had set forth restrictions on the working principles of state employed healthcare professionals and, with the exception of a few allowances, all but completely banned these healthcare professionals from working in private practice or for other health institutions after their officially designated hours of work.

However, as stated above, the Constitutional Court overruled these provisions of the Decree Law in their decisions published on January 1, 2013 which came into effect on July 1, 2013. After the decision came into effect there was a return to the pre-Decree Law arrangement where state employed healthcare professionals were entitled to generate secondary income by performing extra work after their officially designated hours of work. They were able to set up private offices, work for private clinics and hospitals and engage in scientific and educational activities such as providing consultancy services for pharmaceutical companies.

It is important to note that the Constitutional Court had overruled the relevant provisions of the Decree Law only based on issues of procedure, and did not evaluate the provisions of the Decree Law based on content and substance.

NEW HEALTHCARE LAW

The Healthcare Law once again enforces substantial restrictions on the secondary professional activities of healthcare professionals working in state institutions.

Healthcare professionals working in state hospitals will be banned from engaging in secondary income-generating activities outside of their designated hours of work. A few limited exceptions will apply to this ban; namely the exceptions available to all state employees of being able to take up director and manager positions in industry associations and similar organizations. An additional exception for healthcare professionals is that, subject to certain restrictions and with the permission of the state institution they work for, they will be able to work as on-site workplace doctors.

Healthcare professional working in the hospitals of state universities will also be banned from engaging in secondary income-generating activities. An exception has also been made for these healthcare professionals, with doctors and professors working at these state universities being allowed to work in private universities and other health institutions. However, it should be stated that this exception is not extended to private consultancy work for pharmaceutical companies.

Certain conditions have been introduced to this external work, such as all income derived from the work conducted at the other health institution being paid into the revolving fund of the state university, a restriction in the form of only 50% of the number of doctors in the relevant department of state university being able to engage in secondary income-generating activities and the requirement that the contract of work be signed between the state university and the other health institution.

Any state employed healthcare professional who has not resigned from a secondary income-generating activity within three months of the publication of the Healthcare Law will be accepted as having resigned from their respective state institution.

Additionally, a new category has been introduced where professors and doctors that are not academic staff at any university will be able to be employed by state university hospitals on a contractual basis. These healthcare professionals will only be able to engage in teaching and research activities and will only be employed on a contract of up to eighty hours a month with the maximum duration of a year. While there is no provision in the Healthcare Law regarding the secondary income-generating activities of these healthcare professionals, as it is not expressly forbidden, it is assumed that these professionals will be able to provide consultancy services for private medical institutions and pharmaceutical companies outside of their contractual working hours.

We are of the opinion that this second new category to be implemented in state universities aims to counter the departure of qualified teaching and research staff, particularly professors and doctors teaching in medical schools, that is expected to happen once the Healthcare Law was accepted and published by the TBMM. A similar issue relating to the departure of qualified healthcare professionals was also previously observed once the Decree Law had come into effect.

As it stands this definitive new law has re-introduced restrictions to the working principles of healthcare professionals, though previous attempts have shown that there may yet be legal challenges against these provisions. As the previous restrictions under the Decree Law were not overruled on grounds of content and substance, a legal challenge based on the constitutional rights of healthcare professionals to work and practice may be relied upon. It would not be particular surprising if the Turkish Doctors' Union, an organization that has been vocal in their opposition to all previous attempts at implementing uniform full-day working provisions, or other such organizations lodged an administrative appeal against the aforementioned provisions of the Healthcare Law. As in previous appeals, it is probable that the grounds of appeal will be based on the rights of freedom of work and freedom of establishment as safeguarded by the Turkish Constitution.

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