According to attachment no. 2 of the regulation of Ministry of Interior from 9 July 1991 concerning jurisdiction and mode of procedure medical commissions subject to Ministry of Interior and Administration, detection HBs antigen in candidate’s for service blood means his disqualification by receiving N-category (unable to service).
On the other hand, detection of HBs antigen of the officer obliges the commission to grant him C-category (partly unable to service) which may involve the necessity of changing recent work position.
It might seem it’s only a theoretical problem. There are applications to Helsinki Foundation for Human Rights from people who have problems with detection HBs antigen in their blood. Strategic Litigation Programme supports also the policeman removed from the service because of the HIV infection. There is a question how many examples of such cases of people harmed by outdated regulation from the beginning of 90’s will appear.
Archaic regulation
The main problem sticks in the fact that regional health commissions examining and ascertaining the ability to serve in situation of HBs antigen detection cannot adjudicate in a different way, even if candidate’s general health is good (the same is with HIV infection). The commissions even don’t direct the candidates to additional tests in order to establish the dangers of the detection of HBs antigen.
However, the fact of the detection of HBs antigen is only the evidence for infection of hepatitis B-type disease. It’s detection doesn’t mean automatically that the person is a virus carrier but only that had a contact with it. It should underlined that there is no anti-virus-treatment applying to HBs antigen carriers. It is only recommended to visit the doctor regularly. Finally, there are cases of disappearance of the antigen in the blood which means these people are complete cure.
Putting HBs antigen in the above mentioned list of diseases is not justified in the light of the contemporary level of medical knowledge. But it’s vain to seek attempts of change this situation.
Ministry’s doubts
The problem of discriminatory character of this regulations the Ministry of Interior and Administration seems to doesn’t see. It argues that the aim of this regulation is to protect the health of HBs antigen carriers from the negatives service-effects such as stress and irregular lifestyle. Ministry shares the views of the need to health protect of already working officer, who after HBs antigen detection should be allocated to special work position minimizing the negative effects of the service, even if their real health status could be standard
This argumentation can violate the article 60 of Polish Constitution that guarantees a right of access to the public service based on the principle of equality. Such an automatic deprivation those people from the right of access to public service is disproportionate to the aim of the regulation based on the level of knowledge from 1991 especially if the is no possibility of any discretional decision.
Waiting for Tribunal’s judgement
From march 2008 in Constitutional Tribunal there is so called legal question concerning the compatibility above mentioned list of diseases with the Constitution (in as far as it deprives the people with HIV infection the right to service in the police – signature of the case P 61/08). We can regret that Tribunal hasn’t taken up this case yet. Nevertheless, it doesn’t exempt the Ministry of Interior from liability.
There should be taken some arrangements for reliable work in order to change the discriminatory regulation in access to public service. Finding an effective solution in this extent may have a great influence of everyday life of the significant part of the population.
