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As part of the government’s expansion of medical school admissions policies, it has been decided to increase the medical school admissions from the existing 3,000 to 5,000 for the 2025 academic year. In response, doctors, especially interns and residents, including those from major hospitals in Seoul and numerous hospitals nationwide, have launched collective actions such as strikes.

The government announced its position stating that until February 29, 2024, doctors who have left the hospital will not be held accountable for returning to their former positions. However, if they refuse to return, from March onwards, their licenses will be suspended, and legal proceedings will be initiated. This article aims to briefly examine the legitimacy of the Medical Service Resumption Order (업무개시 명령).

Legitimacy of the Medical Service Resumption Order under Medical Law

Relevant Provisions of Korean Medical Law

Medical Law (의료법)
Article 59 (Guidance and Orders)

(1) The Minister of Health and Welfare or a relevant Mayor/Do Governor may provide guidance or issue an order to medical institutions or medical personnel, if considered necessary for policies on public health and medical services, or if a serious hazard occurs or is likely to occur to public health.
(2) The Minister of Health and Welfare, a relevant Mayor/Do Governor or the head of a relevant Si/Gun/Gu may order medical personnel or founders of medical institutions to resume medical service, if there is a reasonable ground to believe that suspension of medical service by the medical personnel without any justifiable ground, or temporary shutdown or closure of medical institutions by a group of the founders causes or is likely to cause great difficulties in giving medical treatment to patients.
(3) Any medical personnel or founder of a medical institution shall comply with an order issued pursuant to paragraph (2) without good cause.

Article 88 (Penalty)

Any of the following persons shall be punished by imprisonment with labor for not more than three years or by a fine not exceeding 30 million won.
1. A person who violates Article 19, 21 (2) (including cases where Article 21 (2) applies mutatis mutandis in Article 40-2 (4)), 22 (3), 27 (3) or (4), 33 (4), the proviso of Article 35 (1), Article 38 (3), 47 (11), 59 (3), 64 (2) (including cases applied mutatis mutandis under Article 82 (3)), or 69 (3): Provided, That the public prosecution against a person who violates Article 19, 21 (2) (including cases where Article 21 (2) applies mutatis mutandis in Article 40-2 (4)), or 69 (3) requires a criminal complaint filed by a victim.

Punishment of medical professionals, especially interns and residents, is based on the violation of the Medical Service Resumption Order under Article 59, paragraph 2 of the Medical Law. If the Medical Service Resumption Order was legal, then under Article 59, paragraph 3 of the Medical Law, medical personnel cannot refuse it without justifiable reasons.

If they refuse, they may face imprisonment under Article 88, paragraph 1. In other words, if 1) the Medical Service Resumption Order is legal and 2) there are no justifiable reasons for refusing it, the person who refuses the order becomes subject to punishment. However, at present, medical professionals, especially interns and residents are not caring for patients in defiance of the Medical Service Resumption Order, and it is evident that significant disruption to patient care is occurring. 

Is the Medical Service Resumption Order Justifiable under Medical Law?

To determine whether the Medical Service Resumption Order under Article 59, paragraph 2 of the Medical Law is legal, four criteria must be met.

Firstly, it is necessary to examine whether interns and residents are the subject of the Medical Service Resumption Order. Article 59, paragraph 2 of the Medical Law only mentions medical personnel (의료인) and medical institution operators (의료기관 개설자) as subjects of the Medical Service Resumption Order, without any other restrictions. 

However, as interns and residents are considered medical personnel under Article 2, paragraph 1 of the Medical Law, it is clear they are the subject of the Medical Service Resumption Order is according to the Medical Law.

Article 2 (Medical Personnel)
The term “medical personnel” in this Act means a physician, a dentist, a doctor of Korean medicine, a midwife or a nurse who holds a license granted by the Minister of Health and Welfare.

Moreover, upon closer examination of the provisions of the Medical Law, it can be seen that the government has meticulously prepared for various contingencies. Again, referring to Article 59 paragraph 2 of the Medical Law mentioned in a., it reads as follows:

“The Minister of Health and Welfare, a relevant Mayor/Do Governor or the head of a relevant Si/Gun/Gu may order medical personnel or founders of medical institutions to resume medical service, if there is a reasonable ground to believe that suspension of medical service by the medical personnel without any justifiable ground, or temporary shutdown or closure of medical institutions by a group of the founders causes or is likely to cause great difficulties in giving medical treatment to patients.”

Although not explicitly stated, the phrase “suspension of medical service by the medical personnel without any justifiable ground,” logically presupposes medical personnel who have been providing treatment up to that point. Therefore, interpreting this inversely suggests that the order cannot be issued to medical personnel who have already retired or ceased practice.

Thus, it can be considered that when there were precursors to collective actions, the government issued a Prohibition Order against resignations (사직서 수리 금지 명령) to each medical institution under Article 59 paragraph 1 of the Medical Law and issued Medical Service Maintenance Order (업무 유지 명령) to interns and residents before the Medical Service Resumption Order. In other words, the aim was to prevent interns and residents from leaving hospitals legally before the issuance of the Medical Service Resumption Order.

Secondly, it must be examined whether significant disruption to patient care has occurred due to the cessation of treatment. Given the current situation where even essential staffing is lacking and patients are experiencing fatal consequences such as death, additional explanation on this matter seems unnecessary.

Thirdly, there is no justifiable reason for the cessation of treatment. Indeed, there are virtually no recognized cases where justifiable reasons have been acknowledged. Therefore, at present, there is hardly any room to justify the refusal to comply with the Medical Service Resumption Order.

However, theoretically speaking, to justify the refusal to comply, it must be considered whether 1) there were insurmountable reasons (such as injury, death of a family member, etc.) and 2) whether the interests pursued by refusing the order outweigh the interests protected by the Medical Service Resumption Order.

Nevertheless, it appears highly unlikely that insurmountable reasons will be acknowledged. Firstly, medical associations such as the Korean Medical Association (대한의사협회) have been holding meetings to oppose the increase in medical school admissions even before the government announcement, and even before the collective actions of interns and residents, there were internal discussions.

Additionally, the reasons put forward by doctors as grounds for refusing the Medical Service Resumption Order, such as “if a flood of doctors from increased admissions floods in ten years, the medical system of South Korea will collapse” or “if the mandatory healthcare package passes, the medical market will collapse,” are abstract and uncertain reasons that may or may not occur in the distant future. However, the risks patients face by not receiving treatment immediately, such as death or permanent disability, are concrete, significant, and foreseeable risks.

In summary, in the current circumstances, it appears unlikely that insurmountable reasons exist, and the interests being infringed upon are significantly greater than the interests pursued by interns and residents, so there is hardly any justification for refusing the Medical Service Resumption Order.

Fourthly, it is also crucial to examine whether the Medical Service Resumption Order was appropriately served. This is a crucial element when determining whether various dispositions issued by the government to the public (such as license revocation, demolition orders, fines, etc.) are legal.

Administrative Procedures Act (행정절차법)
Article 14 (Service)

(3)Service by means of information and communications networks shall be made only where the person to receive service gives consent thereto. In such cases, the person to receive service shall designate the electronic mail address, etc. to which service is to be made.(4)In any of the following cases, public announcement shall be made in at least one of the means such as the Official Gazette announcements, public gazette announcements, bulletin board postings, and daily newspaper announcements as well as the Internet websites postings, so that the person to receive service may readily be informed:1.Where the domicile, etc. of the person to receive service is unascertainable by ordinary methods;2.Where service is impossible.

To understand this accurately, it is necessary to briefly examine Korea’s Administrative Procedures Act. Generally, the Administrative Procedures Act does not allow delivery online without the consent of the parties. In other words, delivery must be made by mail, and delivery via text messages is not possible unless there are special circumstances. Therefore, there is a rumor that one could evade a Medical Service Resumption Order by, for example, pretending not to be home or not answering the door.

 Article 24 (Methods of Dispositions)

(2)Notwithstanding paragraph (1), where any urgent disposition is required for public safety or welfare, or where matters are insignificant, a disposition may be rendered by means other than documents, such as oral explanations, telephone, mobile text message, facsimile, or e-mail. In such cases, if requested by a party, documents regarding such disposition shall be delivered without delay.

However, with the experience of the global Covid-19 pandemic, a new provision has been added to the Administrative Procedures Act, namely, emergency dispositions for public safety or welfare under Article 24, paragraph 2. 

Consequently, even if sending a Medical Service Resumption Order by mail is not feasible, dispositions for public safety or welfare can be made via text, KakaoTalk, fax, email, etc. Naturally, this extends to Medical Service Resumption Order under medical law as well.

Even if the current situation does not necessarily pose a problem to public safety or welfare, under Article 14 paragraph 2 of the Administrative Procedures Act, if delivery is not made, it can be handled by announcing it on the Internet.

Conclusion

In conclusion, the government’s Medical Service Resumption Order under medical law is legal. Considering the subject of the Medical Service Resumption Order, the significant disruption to patient care, the absence of justifiable reasons for discontinuing treatment, and the legal delivery, it appears to be so. In the next part, we will examine the civil law issues related to doctors’ collective actions.