Federal Supreme Court, Decision 2C_236/2020 of 28 August 2020

17. November 2020 – In a recent decision, the Federal Supreme Court held that the regulation of the Canton of Zurich, according to which medical persons who do not work on their own responsibility must also fulfil the criterion of trustworthiness (§ 7 para. 1 lit. b GesG ZH), does not violate the prohibition of arbitrariness. Especially because medical or health care professionals working on their own responsibility may find it difficult to become aware of extra-professional, criminal offences without viewing the criminal record of a supervised medical person. The strict regulations of the Canton of Zurich are therefore based on serious, factual grounds and do not appear to be senseless and pointless, grossly disproportionate or in an offensive way unfair, so that there is no indication of arbitrariness in the legislation.

The Federal Supreme Court did not respond to the appellants' complaint that the cantonal legislation violated federal law, as no violation of article 49 para. 1 of the Federal Constitution (BV) was claimed, nor was it explained how this norm was allegedly violated. Nevertheless, the Federal Supreme Court held that it was not clear to what extent the regulation of the Canton of Zurich was supposed to violate the meaning and purpose of the Federal Law on Medical Professions (MedBG), since the relevant regulations of the Canton of Zurich as well as the MedBG are aimed at the well-being of patients and confidence in treatment and the federal regulation is not exhaustive.

In its final judgment, the Federal Supreme Court held that, in view of the public interests at stake, namely the protection of patients and confidence in the health care system, the withdrawal of a licence had to be given greater weight than the private interests of the complainant, who, despite the withdrawal of his licence, can continue to provide dental technical services not requiring a licence and apply again for the authorisation to provide assistance as soon as the requirements are met again. The appeal is dismissed.

For the full decision, see here.