The Ombudsman's call for the revision of the regulation compelling pharmacies to provide on-call service

The pharmacies' on-call and stand-by obligations, as well as the aspects to be taken into consideration by the competent regulatory organ should be clearly regulated by a statute instead of a ministerial decree, the Commissioner for Fundamental Rights has pointed out in his report. Ombudsman László Székely has requested the competent ministry to carry out a full revision of the compensation of on-call and stand-by services.

A pharmacist submitted a complaint about a ministerial decree pursuant to which the National Public Health and Medical Officer Service may compel the operators of pharmacies to provide on-call and stand-by services without any compensation. The Commissioner for Fundamental Rights ordered an investigation since the complaint had raised the suspicion of infringement on the requirement of legal certainty and the freedom of enterprise. In his report, the Ombudsman has reminded of the coexistence of two circumstances: on the one hand, being a pharmacist is profession requiring high-level professional qualifications, similar to that of a physician; on the other hand, operating a pharmacy, from the times of their privatization, is a profit-oriented business enterprise. Therefore, a pharmacist operating a pharmacy shall be entitled to the freedom of enterprise; however, the State has to ensure the enforcement of its citizens' right to physical and mental health, as well. The provision of medicines is a substantial element of the right to health; thus, ensuring access to medicines should clearly fall within the State's scope of responsibility.

According to the report, it also means that it would infringe the right to physical and mental health if medicines could be purchased only during normal business hours. Consequently, ensuring the provision of medicines constitutionally justifies compelling the operators of pharmacies to provide on-call and stand-by services. Compulsion, however, also means the restriction of the freedom of enterprise, and such a restriction may be imposed exclusively by a statute, not a decree, the Ombudsman has emphasized. Decrees may only regulate the technical details of a restriction stipulated by a statute.

In his report, the Ombudsman has concluded that the current regulation of the obligation to provide on-call and stand-by services is not clear and does not comply with the requirement of statutory level. The deficiency of guarantees concerning legal foundation and terminology do infringe on the principle of the rule of law. The Commissioner has also found it worrisome that, in addition to all of the above, the cabinet minister in charge of healthcare interpreted far too broadly and, as a result, overstepped his authorization. The report points out that the set of criteria used for designating pharmacies to provide on-call duty is one-sided, does not allow for taking into account their varying capacities and interests – regulation is currently within the discretion of the competent chief pharmacist, which has led to the establishment of practices specific to individual regions.

The Commissioner has also emphasized that the designated pharmacies have to provide on-call service without compensation, which raises the issue of the restriction's proportionality. The Commissioner has also indicated that determining the ways and the amount of compensation should fall within the discretion of the legislator. From the aspect of constitutionality, the issue is whether compensation could serve as an adequate general counter value of the services provided. In this context, the investigation has found that the current compensation system is characterized by eventuality and lack of transparency. According to the Ombudsman, it should be clear which fees and benefits are intended to compensate the provision of on-call and stand-by services.

The Commissioner has requested the Minister of Human Resources to revise, as soon as possible and in cooperation with the Hungarian Chamber of Pharmacists, the problematic provisions of the relevant ministerial decree.