Yoon Seok-yeol exposes loopholes in two-faced administrative order of ‘disciplinary action and reinstatement’ in doctors’ strike, ‘forced labor’ of medical residents
President Yoon Seok-yeol’s abuse of the ‘executive order’ revealed a loophole in the simultaneous application of both punishment and reinstatement in line with the ‘illegal collective action’ regulations on the mass resignation of medical residents.
Article 7 of the ‘Basic Act on Health and Medical Services’ stipulates that medical policy is directly related to public health, effectively prohibiting the processing of ‘collective resignations’ to avoid violating ‘social security’ due to the abuse of the executive order to unilaterally suspend doctors’ licenses.
The resident group that submitted the collective resignation filed a complaint with the ILO on the 13th for ‘violation of forced labor’ in response to the ‘attempt to force return to work’ relying on the government’s administrative action to suspend licenses.
The Medical Service Act, which is the basis for the executive order, mainly gives the government authority over ‘medical institutions’, and among medical professionals, there are only regulations on ‘license’ and ‘practice’ for doctors.
Jeon Byeong-wang, director of the Ministry of Health and Welfare's Health and Medical Policy Division, said in a briefing on the 7th that the violation of the ILO convention "is judged to be excluded from the application of the convention."
Article 59 (guidance and orders) of the ‘Medical Service Act’, which was requested to be abolished as an ‘evil law’ in the ILO complaint by medical residents, is a provision for ‘guidance and orders by the Minister of Health to medical personnel.’
Article 59, Paragraph 2 is limited to <a medical professional discontinuing treatment without justifiable cause or a group of medical institution founders suspending or closing down business> and <if there is a reasonable cause to believe that a significant disruption to patient care is or is likely to result, the medical professional or medical institution shall be prohibited from doing so. It is stipulated that an order to start business can be given to the person who opened the business, so it is a 'business start order' in response to 'business closure' or 'business closure' caused by a typical 'administrative order' and is distinguished from 'medical care'.
Article 2, Paragraph 1 of the Medical Service Act states that <Doctors are responsible for providing medical care and health guidance.>
On the other hand, with respect to Article 3 (medical institutions), <“medical institution” means a place where medical practitioners engage in the business of medicine and midwifery (referred to as “medical business”) for the public or a large number of specific people>. When applied separately, there is a large gap between the Yoon administration's 'return to work administrative order' for residents' resignation.
On the 6th, President Yoon said, “We will not tolerate a prolonged strike” in response to the mass resignation of thousands of medical residents, and defined it as “illegal” and “an ‘illegal collective action’ that threatens public health and shakes the country’s governance system.”
In response to President Yoon's instructions, the government is expedient in applying the executive order to 'resignation' in the process of suspending the licenses of approximately 9,000 medical interns and residents due to a joint strike that affected the hospital's medical treatment capacity.
The Korean Medical Residents' Association (Daejeon Association), an intern and resident organization, requested 'emergency intervention' in response to the government's 'commencement order', saying it violates the International Labor Organization (ILO)'s provisions prohibiting forced labor.
The ILO prohibits all forms of involuntary forced or compulsory labor through No. 29, ‘Articles of the Convention on Forced or Compulsory Labor’, and the National Assembly ratified the convention in February 2021.
ILO No. 29 on the prohibition of forced labor ‘prohibits all forms of forced or compulsory labor provided involuntarily’, and the relevant provision is ‘recognition of exceptions in extremely serious situations that endanger the survival and well-being of all or part of the population.’
The 'Framework Act on Health and Medical Services' stipulates that <Article 8 (Citizen's Participation) The state and local governments must collect the opinions of citizens, including stakeholders, in order to establish and implement health and medical policies that have a significant impact on the lives of citizens, including their rights and obligations. It must be done.> The basic rights of citizens were forcibly regulated and the government's arbitrary administrative power was controlled.
The Yoon administration excluded public participation in establishing the policy to increase the number of personnel by 2,000.
This law <Article 7 (Linkage between health care policy and social security policy) The state and local governments shall ensure that social security policies related to health care policy are linked>, which prohibits the government's unilateral administrative order to suspend a doctor's license. In order not to violate ‘social security’, the processing of ‘collective resignations’ was prohibited.
The Basic Health and Medical Act is limited to ‘basic rights of the people’ and does not specify the rights of the government.
<Article 5 (Responsibilities of Health Care Professionals)> of this Act provides that in <② When a health care provider is requested to provide health care services, he/she may not refuse to provide health care services without a justifiable reason>, the 'requester' corresponds to 'citizens' and the 'government'. has been excluded.
Article 5 states <③ In order to provide appropriate health care services, health care providers shall, if necessary, introduce persons receiving health care services to other health care institutions and endeavor to provide related health care data to other health care institutions>. It was defined as ‘introduction to another institution’.
In <Article 1 (Purpose)>, the Health and Medical Services Act defines 'citizens' rights' as <establishes the rights and duties of citizens and the responsibilities of the state and local governments regarding health and medical services and stipulates basic matters regarding the demand and supply of health and medical services>. ‘Government responsibility’ was specified.
‘Government responsibility’ is defined in Article 4 as <provision of legal and institutional resources necessary to protect and promote public health>, so the situation of ‘temporary mass resignation of doctors due to administrative order’ actually constitutes a ‘violation of the Health and Medical Services Act’ by the government.