Hiring nursing assistants instead of nurses constitutional: Constitutional Court

A constitutional complaint filed by nurses claiming that a provision of the Medical Service Act that allows nursing assistants to replace part of the nurses’ quota at medical institutions and nursing homes is unconstitutional has been dismissed.

According to the medical community, the Constitutional Court dismissed a constitutional challenge filed by five nurses against Article 36(5) of the Medical Service on Jan. 23.

The nurses claimed that Article 36 (5) of the Medical Service Act and Article 38 (3) of the Enforcement Rules of the Medical Service Act violate nurses' rights by allowing nursing assistants to take over some nurse positions at medical institutions.

They challenged the following legal provisions as unconstitutional: Article 36 (5) of the Medical Service Act, Article 80 (2) of the Medical Service Act, Article 38 (1) of the Enforcement Rules of the Medical Service Act, Article 38 (3) of the Enforcement Rules of the Medical Service Act, and the Administrative Notice on the Number of Nursing Assistants.

The plaintiffs argued that the provisions violated nurses' and healthcare consumers' right to freedom of profession, right to equality, right to health, and right to life.

However, the Constitutional Court did not accept this argument.

"The opportunity for nurses to be employed by medical institutions or the opportunity for nurses to receive better treatment than nursing assistants at medical is not a fundamental right,” the top tribunal said. “Even if a medical institution hires nursing assistants instead of nurses, or if the treatment of nurses is lowered, there is no restriction or violation of fundamental rights."

The Constitutional Court also rejected the argument that nursing assistants violate the right to equality by performing nurses' duties.

"Nursing assistants can only perform some of the nurses' duties under doctors' guidance in clinic-level medical institutions. The scope of work of nursing assistants is narrower than that of nurses," it said. "It is difficult to see that nursing assistants are treated equally to nurses, and it cannot be recognized that the provisions of the law may violate the right to equality.

The Constitutional Court added that it is also difficult to see how hiring nursing assistants rather than nurses restricts the right to health, the right to life, and the dignity and value of healthcare consumers as human beings.

The Korean Licensed Practical Nurses Association welcomed the Constitutional Court's decision.

"There is a serious shortage of nurses at neighborhood clinics, and nursing assistants are filling these vacant positions," it said. "This decision once again confirms that there is no problem with nursing assistants performing their duties (at neighborhood clinics).”

The association pointed out that nurses cannot operate in medical fields alone; they need nursing assistants, nurses, doctors, and other healthcare workers to work together as a team.

"We hope that the ruling will expand opportunities for different occupations to collaborate and work together for the health of the public rather than pitting them against one another,” it added.