Our comment on whether it is necessary to obtain medical practice license for medical examination of drivers

This material is obsolete. Read about the peculiarities of the new regulation of pre-trip medical check-ups of drivers here.

In recent years, most companies that are engaged in transportation or have their own motor pool, have started to actively bring their activities in terms of drivers’ medical check ups in line with the current law of Ukraine.

In this regard, we have prepared a publication about the regulations governing the drivers’ medical check-ups, which will also elaborate on the need to obtain a medical license in this case.

According to the Order No. 65/80 of 31.01.2013 on Approval of the Regulation on medical examination of potential drivers and drivers, namely, clause 1.4., drivers of vehicles owned by enterprises, institutions and organizations regardless of the form of ownership, individual entrepreneurs engaged in the transportation of passengers and goods are subject to pre- and post-trip medical check-ups.

In accordance with clause 1.8. of the above mentioned Order, pre- and post-trip medical check-ups of drivers shall be carried out by medical doctors and/or junior medical staff with a medical degree in nursing, medical care (hereinafter - medical workers).

At the same time, the Instruction on the procedure of issue and use of stamps of medical workers conducting shift-time pre- and post-trip medical check-ups of drivers, approved by the Order No. 80/1-П of the Ukrainian Medical Center for Traffic Safety and Information Technology SE (hereinafter - SE) of the Ministry of Health of Ukraine of March 03, 2008, namely clauses 1.2., 2.2., sub-clauses 1..3.1., 1.3.2., stipulates that in order to carry out shift-time pre- and post-trip medical check-ups of drivers, the company’s medical worker needs only to obtain a certificate confirming his/her right to carry out pre- and post-trip medical check-ups of drivers, a certificate of inclusion in the Unified State Register of medical workers conducting shift-time pre- and post-trip medical check-ups of drivers and a stamp confirming medical fitness to drive a motor vehicle, as well as to have a specially equipped medical office.

However, the lawfulness of the requirement to obtain the abovementioned certificates and the fact of their issuance has been often challenged. Thus, in the letter of the State Committee of Ukraine on Regulatory Policy and Entrepreneurship No. 7503 of 26.09.2011, it was stated that since “the necessity and other requirements for obtaining the abovementioned Certificates are not stipulated by any legislative act ( only the necessity of medical check-ups is stipulated), the requirements concerning the obtainment and issuance of the said Certificates violate the rules and principles of the Law of Ukraine on the Licensing System in the Sphere of Economic Activity”.

With regard to the activities of the SE, there is also a decision of the Antimonopoly Committee of Ukraine (AMCU) of 26.12.12 No. 1039-р on the results of the proceedings No. 129-26.13/196-11 on the violation of the laws on protection of economic competition by the Ministry of Healthcare of Ukraine related to training of medical workers on carrying out shift-time pre- and post-trip medical check-ups. In this decision, the AMCU states that the services provided by the SE are not unique, their quality is rather low and there are no grounds for it and its local subdivisions to monopolize the services in the field of medical workers training in this area.

However, the SE, as well as the Ministry of Health of Ukraine, which it resides within, struggle to avoid making any  changes to the regulatory framework on the SE activities. The SE has repeatedly appealed to the court that it shall have an exclusive right to issue certificates and provide training in shift-time pre- and post-trip medical check-ups of drivers. In this regard, it’s worth mentioning the resolution of the Supreme Economic Court of Ukraine No. 9/386 of 23.08.2011, according to which, the court confirms the right of the SE to be the only entity authorized to issue the certificates, but refuses its right to be an exclusive provider of training services to medical workers.

Given the different positions of state authorities regarding this situation, it is difficult to say what the enterprises should do. On the one hand, the SE activities are treated as not exactly legal, but on the other hand, the regulations governing the training procedure are still in force and confirm the SE’s right to issue certificates. Based on our experience, we would suggest to obtain the Certificate and other supporting documents. This will allow companies to avoid potential troubles in case of any inspections carried out by regulatory authorities.

As for the need to license such activities, it should be noted the following.

Licensing requirements for carrying out economic activities on medical practice, approved by the Order of the Ministry of Health of Ukraine No. 49 of 02.02.2011 (as amended by the Order of the Ministry of Health of Ukraine No. 981 of 30.11.2012), namely, clause 1.3. of the General provisions, stipulate that the license is required for a medical practice that is a type of economic activity in the field of health care carried out by healthcare facilities and individual entrepreneurs that shall meet common qualification requirements in order to provide the types of medical care defined by law, as well as healthcare services.

Accordingly, doctors and junior medical staff, who carry out medical check-ups of drivers independently, without the the business entity having an appropriate education, their activities are not subject to licensing. At the same time, if the company intends to carry out medical check-ups and provide assistance to other categories of employees other than drivers, it shall establish a site medical facility within the enterprise and license it. Or it may sign an agreement with a local outpatient hospital.

This material is obsolete. Read about the peculiarities of the new regulation of pre-trip medical check-up of drivers here.