Academic journal article Central European Journal of Public Health

Ensuring Supplies of Medicines during Pandemics in Terms of Public Procurement

Academic journal article Central European Journal of Public Health

Ensuring Supplies of Medicines during Pandemics in Terms of Public Procurement

Article excerpt

INTRODUCTION

The present text ponders over ensuring the right of health protection in pandemics or pandemic threats from the point of view of the timely procurement of medicines. In view of Article 31 of the Constitutional Charter on Fundamental Rights and Freedoms (2/1993 Coll.), which establishes the constitutional right of health protection, it should be considered whether the present wording of the Czech legal order ensures sufficient fulfilling of that constitutional right under the above mentioned health crisis situation with respect to procurement of medicines required for protection in general and those affected in particular (1, 2).

The text deals with an assumed situation caused by a vast epidemic or pandemic when in the public interest it is necessary to supply an adequate amount of medicines in bulk.

Epidemics and pandemics are transitional in nature, affecting transnational areas. In view of these epidemiological characteristics of such a disease occurrence, shortcomings in supplies of vaccines and medicines in need have been revealed in connection with the pandemic influenza of 2009, in which the mechanisms of the EU in respect of the above were guided by the existing procedures for procurement of vaccines and medicines: "Joint Procurement Agreement to Procure Medical Countermeasures", signed in 2014, to improve their preparedness when countering border threats.

This agreement is based on the Decision of the European Parliament and of the Council Decision No. 1082/2013/EU of the European Parliament and of the Council of 22 October 2013 on serious cross-border threats to health and Decision No. 2119/98/EC.

There is evidently a public health crisis within the EU, which no single EU member state is capable to deal with itself.

Interpretative disputes cannot be ruled out where the procedure in order to protect life and health may come into conflict with the rules of fair competition. One could assume that the protection of human life and health is an absolute priority and therefore any such conflicts are out of the question. In theory, such disputes are inadmissible although in practice the situation is often different; in some cases, it is a question of whether regular procurement procedure should be applied due to the time required for realisation of normal competition. For this reason, it is necessary to mention crisis management. Crisis management in the Czech Republic is governed by the rule of the highest legal force, i.e. the Constitutional Act 110/1998 Coll. on the security of the Czech Republic (3). This Act provides for the government declaring a state of emergency in the event of natural disasters, environmental or industrial accidents, accidents or another danger that endanger lives, health or property, or internal order and security. In fact, the state of emergency has been so far declared only for floods and storms.

It can be assumed that a pandemic could be considered as another danger that, to a great extent, endangers lives and health of the population.

Emergency status is announced for a maximum of 30 days, for a longer period of time with the consent of the Government. Therefore, it can be concluded that the Constitutional Act of the Czech Republic could, by declaring a state of emergency, allow the use of Crisis Act 240/2000 Coll. This Act provides that such a procedure would only be possible for a limited time. This is covered by the Act No.134/2016 Coll. on Public Procurement.

This provision could allow the purchase of medicines without legal restrictions. But there is no example or precedent for such a procedure. In any case, the procedure could be applied for a very limited time.

It can be assumed that in the event of an emergency medical crisis, the Ministry of Health should be the authority responsible for the enforcement of all activities related to this legal Act.

In view of the questionability or controversy of such a procedure, its time constraints, economic risk, and no experience with such a procedure, the article does not further address this theoretical possibility of purchasing medicines. …

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