On April 23, 2008, the Constitutional Tribunal held that the section of Article 52 of the Medical Code that prohibits doctors from publicly disparaging one another was incompatible with the freedom of expression and criticism provisions in Article 54 of the Constitution. The Helsinki Foundation for Human Rights filed a complaint on behalf of Zofia Sz. challenging the constitutionality of Article 52 of the Code of Medical Ethics, which provides in relevant part: “Physicians should caution in formulating an opinion about the professional activities of another doctor, and in particular, should not publicly disparage another doctor in any way.” (14-JUL-08)
The Court reasoned that freedom of expression and criticism are not absolute rights and therefore may be limited in order to protect the health of patients. Limits on the freedom of expression and criticism are permissible in the medical field as such restrictions are justified by the need to ensure patients’ confidence in their doctors. However, the Court noted that disciplinary courts have understood the meaning of the word “disparage” as prohibiting any public criticism of one doctor by another. Such an understanding is, in the Court’s view, overbroad; thus, the Court found that a distinction should be made between criticism that is not related to the public interest and criticism that is. Accordingly, the understanding of this provision as prohibiting all public criticism is unconstitutional under Article 54 of the Constitution. Instead of requiring revision of the disputed provision, the Court ordered disciplinary courts to interpret Article 52 of the Medical Code in the spirit of its judgment. However, it is our opinion that a revision of the Medical Code would be a more effective method of implementation. The case has been widely commented in Polish media, as having impact on the general attitude towards medical profession in Poland. Zofia Sz. has been represented before the Polish Constitutional Court by Zbigniew Ho³da and Ms. Anna Nizankowska.
