Encroachment on medical competencies: ruling against nursing
The Supreme Court of Madrid (TSJM) has declared the nullity of the decision of Fr General Nursing Council (CGE) which regulates the professional practice of nurse managers and healthcare leaders. In this way, the fourth panel of the above-mentioned court considered the appeal of General Council of Official Colleges of Physicians (Cgcom)who decried the irregular attribution of powers that fell to his group.
In a court decision to which he had access Medical writingthe highest body of Madrid justice refers to several articles of the CGE resolution that lead to an alleged violation of competences. A series of irregularities that affected the very preamble of the quashed order, which called for it to “develop a common management framework” to “support” all patients who undertake management functions “accepting management or consulting roles at any level and health, social health or welfare organization”.
“Only the ordinary legislature can regulate the exercise of the nursing and medical professions, and this matter cannot be settled by a rule of a different rank,” sums up the TSJM’s opinion based on current case law. In this sense, he recalls that the General Nursing Council “has the power to order the activities of nurses, but in any case to regulate the profession in question as this ordinance shall be established by law’. In this regard, she emphasizes that the Nursing Council “is overstepping in their competences by invading the resolution of attributions that correspond to doctors’.
“Only the ordinary legislature can regulate the practice of nursing and the medical professions, and cannot regulate the matter by rule of a different rank”
The verdict won by Ricardo DeLorenzolegal counsel of General Council of Official Colleges of Physiciansalso elaborates on the idea that the CGE’s bylaws cannot take precedence over the professional regulation that the nursing group has and that is included in the law.
In this sense, De Lorenzo explains that the aforementioned decision incorporates the doctrine contained in the decision of Constitutional Court in its decision 93/92 of 11 June (EDJ 1992/6177) to justify its decision.
This expresses that “the function of ordering the profession, which is provided for generally by Article 3 of the Professional Associations Act, under the auspices of Article 36 CE, can only be exercised within the limits determined by the powers conferred by the Act, which must to be subject to strict interpretation. The reason is that, as we pointed out in STC 83/1984, legal basis 3.4, the provisions which limit the freedom of those who develop professional and business activities do not depend on the judgment of authorities or administrative corporations”
Nursing resolution void in its entirety
The TSJ rejected, in parallel, the opposition of the General Nursing Council to declare its resolution null and void. The organization, chaired by Florentino Pérez Raya, claims that “the possible lack of validity of any order it should not affect the whole“.
However, the court held that the resolution was “a full regulation of the field of activity of the health professions”. “However much it respects the norms of a higher rank on which it is based, it is reserved for the law and does not correspond to professional associations, since it exceeds the scope of its powers, since it is not limited to the consideration of accessories or secondary aspects” , dots.
In its decision, the TSJ upheld the “nullity” of the aforementioned resolution and ordered CGE to pay the costs of the appeal. However, it emphasizes that the sentence is subject to appeal which must be submitted within 30 days.
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