On 29 July 2015, the German Government introduced a legislative initiative of the Act on fighting corruption in the health care sector. The draft Act will now be read by the Federal Parliament and it is expected that it will come into effect at the beginning of 2016. –
What has been the status of medical practitioners in Germany since 2012?
The decision of the German Federal Supreme Court on 29 March 2012 (GSSt 2/11) revealed a criminal liability gap for resident medical practitioners such as registered doctors, alternative practitioners and pharmacists with a public education, regarding bribery and corruption in Sections 299 et seqq. of the German Criminal Act (StGB). – The court held that a resident medical practitioner, who is admitted for statutory health care supply, in exercising his/her respective duties, acts neither as a public official, nor as an authorized representative of the statutory health care insurance scheme. Hence, any incentive granted to him/her for the prescription of certain pharmaceuticals cannot be subject to criminal liability under the provisions on the corruption of public officials in Sections 331 et seqq. Nor under Sections 299 StGB et seqq of the German Criminal Act on “Bribery and corruptibility in commercial transactions”. –
What did the legislators do?
Until now, legislators have not enacted a law, which closes the criminal liability gap for resident medical practitioners. – After the earlier initiative in the Federal Council came to a halt at the end of the parliamentary term in 2013, the state of Bavaria filed a new draft legislative proposal on 15 January 2015. The German Federal Ministry of Justice and Consumer Protection (BMJV) submitted its own draft of an Act on fighting corruption in the health care sector (StGB-E) on 4 February 2015, which was focused on in public and literal discussions. – On 29 July 2015, the German government introduced into the German parliament a legislative initiative for an Act on fighting corruption in the health care sector, which is based on the draft of the BMJV. –
Initial draft by the BMJV – key elements
The guiding principle of the BMJV draft Act was that it serve to prevent corruption in the health care field which is seen as a cause for escalating costs as well as an erosion of the public’s trust in health care supply decisions. Hence, the draft aimed at providing a two-fold protection: a guarantee for fair competition in the health care sector and maintenance of the patients’ confidence in the integrity of decisions made by health care practitioners. – The core part of the draft Act is Section 299a StGB-E. Section 299a (1) StGB-E addresses the “receiver’s side”, Section 299b (2) StGB-E relates to the “giver’s side”. Section 299 (2) (b) contains the wording “violating his professional duties in a similar manner”. –
Serious concerns about the initial draft
The draft law by the BMJV has been subject to criticism. Various professional associations raised objections to the draft. It was pointed out that the wording in Section 1 number 2b of Section 299a StGB violating his professional duties “in a similar manner” would violate constitutional principles. It was criticised as being incompatible with the constitutional principles of legal certainty and equal treatment, potentially criminalising any violation of professional rules. Since the latter are subject to the self-regulation of the respective administrative bodies, this would empower those bodies to create criminal liability for their members. This inexact legal term was the central subject of criticism, because of its so called “blanket character”. –
Act on fighting corruption in the health care sector
In the German government’s 29 July 2015 draft of the Act on fighting corruption in the health care sector, elements of the initial draft have been amended and deleted. Notably, the reference to the violation of duties “in a similar manner” has been deleted. – Section 299a (1) number 2 StGB therefore conceives the acceptance of benefits and gifts which the medical practitioner receives for the purpose of prescribing certain pharmaceuticals or devices of the manufacturers who granted such benefits. Thus, he violates his professional duty of so-called “health care independency”. Initially according to the prior Section 299a StGB, this duty was grounded in the different professional codes of the respective Federal state. – Section 299a StGB (Government’s draft) requires an illegal agreement between the recipient and the giver who is supplying the recipient (“Unrechtsvereinbarung”). The requirement of an illegal agreement reduces the possibility of unequal treatment in comparison to the initial Section 299a StGB, a situation which could have developed because of the different professional codes amongst the different Federal states. – The draft law assigns culpability to the resident medical practitioners as well as to the bribing companies. Additionally, the draft law includes a change to the reporting system: the Association of Statutory Health Insurance Physicians, the National Association of Statutory Health Insurance Physicians, the health insurance companies and the Central Federal Association of Health Insurance Funds have to establish an institute to exchange and report on instances of malpractice in the health care sector. –
A main issue with the initial draft of the Act to fight corruption in the health care sector involved the fear that prosecutors would have to assess a possible criminal liability in each case of rebate or remuneration considered inappropriate or inadequate. – In the Act passed on 29 July 2015, Section 301 StGB clarifies that corruption and bribery will only be pursued upon criminal complaint unless the case is of high public interest.
In addition to the change and amendment of the Sections 299a et seqq. StGB, the following rules will be changed:
- Section 74c (1) 1 no. 5a of the German Code on Court Constitution;
- Section 81a of the Social Code V;
- Section 197a of the Social Code V.
With the Amendment of the draft of an Act to fight corruption in the health care sector by the German government as compared to the draft by the BMJV, the punishable offence is equalized by the requirement of the illegal agreement (“Unrechtsvereinbarung”). This requirement guarantees that the punishable offence is not dependent on the differing professional codes in various regions and thus prevents unequal treatment.
For more information on the subject please see original article: New attempts to fight corruption in the German Health Care Sector
Partner and Country Head
Dr Hans-Hermann Aldenhoff heads the German Simmons & Simmons offices and is the firm’s international head of dispute resolution, covering both contentious and non-contentious employment and dispute resolution. One particular field of expertise is white collar crime, where Hans-Hermann advises corporations on all labour and criminal law related proceedings against former management or third parties as well as on corporate compliance issues. He is also a member of the firm’s crime, fraud and investigations group. Dr. Aldenhoff is a member of the ETHIC Intelligence Certification Committee.
The ETHIC Intelligence Expert’s Corner is an opportunity for specialists in the field of anti-corruption compliance to express their views on approaches to and developments in the sector. The views expressed in these articles are those of the authors.
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