Medical personnel in Korean Medical Service Act

In Korean Medical Service Act, only individuals recognized as “medical personnel” are authorized to perform “medical practices”. 

 

Today, I write down about regulations about "medical personnel" in the act and further information about it. 

 

 

Attorney David K. Chang

BNL Law

연락처: david@bnl.legal , 010-6836-7578

Prohibition against Unlicensed Medical Practices

Medical Service Act Article 27 

(1) Any non-medical personnel shall not perform medical practices; and even medical personnel shall not perform any medical practice other than those licensed: Provided, That any of the following persons can perform medical practices to the extent prescribed by Ordinance of the Ministry of Health and Welfare:

 1. A person who holds a foreign medical license and stays in Korea for a certain period of time;

 2. A person who performs medical practices for medical volunteer or a research and pilot project at a medical college, dental college, college of Korean medicine, graduate medical school, graduate school for dentistry, graduate school for Korean medicine, general hospital, or foreign medical aid institution;

 3. A student majoring in medicine, dentistry, Korean medicine, or nursing.

(2) Any non-medical personnel shall not use a title of a physician, dentist, doctor of Korean medicine, midwife, nurse, or any other title similar thereto.

(3) No person may introduce, arrange or solicit a patient to a medical institution or medical personnel for profits, by exempting or discounting medical expenses to be paid by a patient under the National Health Insurance Act or the Medical Care Assistance Act, offering money, etc. or providing means of transportation to the general public; or instigate any person to do so: Provided, That any of the following acts may be permitted:

 1. Attracting a patient through prior individual approval from the head of the competent Si/Gun/Gu by reason of economic conditions, etc. of the patient;

 2. Attracting a foreign patient who is neither a policyholder nor dependent pursuant to Article 109 of the National Health Insurance Act (excluding a foreigner who resides in the Republic of Korea, as prescribed by Ordinance of the Ministry of Health and Welfare).

(4) Notwithstanding paragraph (3) 2, an insurance company, mutual company, insurance solicitor, insurance agency or certified insurance broker defined in Article 2 of the Insurance Business Act shall be prohibited from attracting foreign patients.

(5) No person shall have persons other than medical personnel provide medical services or have medical personnel provide unlicensed medical practices.

 

Supreme Court Decision

“Article 27, Paragraph 1 of the Korean Medical Service Act allows only "medical personnel" to perform "medical practices" and strictly prohibits unlicensed medical practices. Under this provision, "medical practices" refer to actions based on medical expertise, encompassing examinations, inspections, prescriptions, medication, surgical procedures, and other activities aimed at disease prevention or treatment, as well as actions that, if not performed by a medical personnel, may pose a risk to public health and hygiene. The concept of "a risk to public health and hygiene" extends to abstract risks, making it clear that the absence of actual harm to a patient does not negate the potential harm to public health and hygiene (Supreme Court, June 19, 2018, Case No. 2017DO19422).

 

Guideline by Ministry of Health and Welfare: Elements for “Medical practices”

(1) Medical Expertise

It's crucial to consider not only whether the information falls under the category of "medical conditions and medical information" but also whether the interpretation and judgment of this information require medical expertise.

 

Actions that merely provide guidance on guidelines, criteria, or recommendations presented by reputable institutions, rather than engaging in acts based on medical expertise, may not be considered medical practices. However, it is essential to clearly specify the source and origin when providing such guidance.

 

(2) "Diagnosis," "Prescription," and "Treatment"

The terms "diagnosis" "prescription" and "treatment" pertain to systematic processes and activities directly intended to cure or alleviate illnesses, disabilities, injuries, etc.

 

Therefore, activities aimed at enhancing one's health through routine health management practices are considered indirect actions and do not fall under the category of medical practices.

 

(3) Risk to Public Health and Hygiene Concerns:

When providing services, such as rehabilitation therapy, that go beyond the scope of routine health management activities with the primary purpose of directly treating a person's illness, the act may be considered one that poses a high risk to public health and hygiene if not performed by a medical personnel.

 

However, it may be challenging to classify the provision of services, such as counseling and education, within the same scope as a high-risk activity when there is an existing framework involving medical institutions (medical personnel), including prescriptions, judgments, or referrals.

 

Examples of Prohibited Actions:

1.  Actions Involving Direct Confirmation of Disease Occurrence or Risk for Specific Symptoms:

  i. Non-medical institutions engaging in the direct prediction of the risk of a specific disease, without relying on credible sources such as statistics, research, or scientific papers, but instead using an individual's health diagnosis (examinations) results and health indicators such as blood pressure, blood sugar, and body weight as the basis, may be considered actions that fall outside the scope of medical expertise and may pose risks to public health and hygiene.

 

  ii. Offering advice or counseling that resembles a diagnosis and is based on the user's self-reported health status or information obtained through telephonic consultations, where users input their health conditions, may also be viewed as actions that do not align with medical expertise. Such actions could potentially raise concerns about public health and hygiene.

 

2. Counseling and Advisory Actions with Direct Treatment Purposes for Diseases:

 

In situations where there is no prescription, diagnosis, or referral by medical personnel, actions that go beyond offering general guidelines for managing within the normal range but instead involve setting personalized management levels based on an individual patient's characteristics and disease-related metrics can be considered actions with the direct purpose of disease treatment.

 

These actions involve conducting interviews, examinations, or treatments to confirm diseases and subsequently referring individuals to medical institutions for further evaluation or care.

 

 

Attorney David K. Chang

david@bnl.legal

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