How do older doctors, i.e. doctors who have reached the age of 55, perform on-call duties, or are older doctors even required to perform on-call duties according to the legislation?
Written notification
Section 42(4) of the Medical Services Act (ZZdrS) provides that a doctor who has reached the age of 55 years is generally not required to be on call, under the conditions specified by the Minister of Health. These are laid down in the Regulation on the conditions under which a doctor is not required to perform on-call duty (the Regulation). Article 2 of the Regulation stipulates that a doctor (over 55 years of age) need only to inform the provider of continuous emergency medical care in writing of their wish not to be on call. The written notification must be given by the elderly doctor to the employer or the provider of continuous emergency medical care at the latest three months before the age of 55 or three months before the date on which they wish to exercise their right not to perform on-call duty.
Additionally, Article 199 of the Employment Relationships Act (ZDR-1) also provides that an older worker (i.e., according to Article 197 of the ZDR-1, a worker over 55 years of age – in this case, i.e., older doctors) cannot be ordered to work overtime or night shifts without the worker’s written consent. If the employer does not obtain such written consent, then the employer may only organise on-call duties as part of regular working hours, but not as a form of overtime or night work. As a result, the ZDR-1, which also applies to doctors, prohibits the imposition of overtime and night work, which on-call duty falls under, without their written consent.
Employer’s or contractor’s approval
It does not follow from the Regulation that older doctors or doctors over 55 years of age would in any case need the approval of the employer or that they would have to find their replacement.
However, Article 2(3) of the Regulation stipulates that if an employer or the provider of continuous emergency medical care has granted a physician permission not to perform an on-call duty under this Regulation, the provider of continuous emergency medical care should seek a substitute physician, thereby implying that a specific act of the provider of continuous emergency medical care is required, but only in cases justified under Article 3 of the Regulation.
Exceptions
Article 3 of the Regulation defines exceptions in which a doctor, even if they have reached the age of 55, must continue to perform on-call duty at the request of the provider of continuous emergency medical care. Namely in cases of natural or other disasters, epidemics; if there are no other organisational possibilities for providing uninterrupted healthcare at the provider of continuous emergency medical care due to the age structure of the doctors of the individual specialties; in the absence of other doctors from the provider of continuous emergency medical care for medical or other reasons; in other cases where the life and health of people are at risk and it is not possible to organise continuous emergency medical care in any other way, but only for as long as it is necessary to save the lives and health of people.
Thus, the provider of continuous emergency medical care (as also noted by the Medical Chamber of Slovenia) must specifically justify any restrictions imposed on a doctor’s right to cease participating in on-call duties based on Article 3 of the Regulation. These exceptions need to be narrowly interpreted as they encroach upon the general right of a physician who has reached the age of 55, as defined by Article 42 of the Medical Service Act (ZZdrS).
Prepared by: Katarina Emeršič Polić, mag. prav.