Criminal liability for performing laboratory diagnostics without necessary authority

Abstract

The laboratory diagnostician’s profession is classified as the so-called professions of public trust. One of their features is limiting access to the profession through, among others, determining specific qualifications, education and skills, verified by appropriate bodies in the legal procedure, and awarded with so-called right to practice. The purpose of this procedure is allowing professional activities to be carried out only by persons who will guarantee their necessary quality. This requirement is particularly important in the case of medical employees, whose activities determine the life and health of patients. The Polish legislator secured the implementation of these requirements by means of the penal code. In art. 71 of the Act on laboratory diagnostics, a prohibited act has been described, which included performing laboratory diagnostic activities by a person who does not possess the authority do so. This is called a halved act, i.e. depending on the degree of social harm, may be considered an offense (section 1) or felony (section 2). This article discusses the terms of criminal liability for this act, including the circumstances qualifying it as a felony, in the form of actions to obtain a financial advantage or misleading as to the possession of authority. It explains who could be the perpetrator of this act and why the protection of criminal law was restricted only to activities performed in the laboratory. Penalties and criminal measures that can be imposed for this act, as well as the procedure for its prosecution, were also indicated. Deficiencies of this regulation and proposals for its amendment are also presented. The argument has been enriched by judicial decisions illustrating the presented theses.