ARDD’s soon to be launched paper entitled “The Quality of Health Services and Medical Liability: A Comparative Study between the Jordanian and Palestinian Legal System” concluded that the issue of medical liability still faces many difficulties and obstacles in Jordan and Palestine. These are two folds: the first is that despite the special laws regulating medical liability cases, these laws don’t address the issue of medical liability as a criminal issue with an independent specialized named legal penal, considering it an issue that needs a special classification, and did not specify the legal procedures to be followed when a medical error occurs, which pushes the parties to return to general civil, criminal and administrative laws. The second fold is with regards of proof, as the burden of proof are among the obstacles facing the conflicting parties, especially patients, who are currently responsible of proving that a medical error has happened and what damage resulted from it.
Speaking about the purpose of the paper, ARDD Executive Director, Samar Muhareb said “Jordan has an opportunity to be a platform to stimulate regional dialogue on medical liability, and given the similarity of the laws in force whether in Jordan or Palestine and the depth of the relationship between the two countries, any development here will reflect positively there”.
She added: “This paper came in light of the needs that we encountered during the provision of legal services by ARDD to the most vulnerable groups, especially refugees, noting that the paper faced, like other papers and studies, problems related to the difficulty of obtaining information while working on it, due to poor communication between the medical sector and the justice sector.”
The working paper was the focus of the Forum for Supporting the Justice Sector latest dialogue session held on Sunday, March 13, 2022, and to follow up with the efforts of the Public Health Policy Lab. The session moderated by Dr. Sawsan Al Majali, member of the Steering Committee of the Forum for Supporting the Justice Sector hosted the speakers: Dr. Maria Lograno, Senior Adviser at Al Nahda Center in ARDD, Dr. Moamen Al Hadidi and Dr. Muhannad Al Nsour members of the Forum medical committee.
The Jordanian and Palestinian justice systems have many similarities due to the depth of the relations between the two countries, especially that the previous Jordanian rule of the West Bank, resulted in the adoption of Jordanian laws, many of which are still in force today in Palestine. Jordan and Palestine were among the first Arab countries to adopt a set of liability laws in recent years. In addition to this, Many Palestinians turn to Jordan in order to benefit from the medical services provided, whether they are citizens, medical tourists, residents, or refugees.
After the legal analysis of the Jordanian and Palestinian legal system laws related to the right to health and medical liability, the paper reached a set of recommendations, most notably, reformulating the legal aspects of medical liability and to limit them to a special law, instead of keeping it under the public laws umbrella, and with regard to criminal liability, the Paper called on Jordanian legislators to create a legal template for a new crime in the special section of the Penal Code, and not only leave the issue to the general rules, reconsider the readiness of the judicial courts to consider cases of medical errors, reconsider the procedures followed in the courts and the competent authorities, and push towards more activation of the role of special committees in the health liability laws of 2018, in both Palestine and Jordan.
Dr. Majali stressed that we must move more and push for the constitutionalizing of the right to health, as it is one of the basic rights of the citizens, which is mentioned in the constitution in an indirect way, such as old age and motherhood, but it must be clear and comprehensive.
She indicated that the study and recommendations included the two countries due to the similarity of laws related to health liability and their shortcomings. Hence, we have the duty to focus on medical liability as a legal tool to enhance quality in health care services, and this is what motivates us to push for an effective health liability law that enhances quality in the provision of health services on the one hand, and protects care providers on the other.
For his part, Dr. Al Hadidi criticized the absence of the right to health from the articles of the Jordanian constitution, despite its amendment more than once, as well as the absence of protocols in the Jordanian Medical and Health Liability Law. He pointed out that there is a defect in some articles of this Law, such as Article (9) that talks about forming committees, and Article (17) on compensation, stressing the need to learn from the protocols in force in the field of health liability in European and South African countries.
Dr. Al Nsour believes that the applicable laws such as the Public Health Law are somewhat advanced, but they need more explanations and information, and they have some shortcomings, with evidence that we ignored the Public Health Law in the Covid-19 pandemic and adopted the Defense Law, stressing that the main problem is not with laws, but rather with our lack for the action mechanisms, as we are still theoretically talking about health.
The participants stressed the need for a single and clear body that defines medical liability and provides protection for patients and health care providers, and the need for specialized judges within the courts to look into medical cases and determine the error, in addition to the need for the Jordanian Parliament to play its role in monitoring the implementation of health laws, especially the law of medical and health liability. The participants also stressed the need to hold permanent dialogues with the Palestinians Legal professionals and health workers, about the applicable laws and the extent of their application, as well as the need to benefit from the development made by some Arab Gulf countries in the field of health liability, and to bring all advanced international standards in this field to benefit from them in Jordan and Palestine.