The health sector’s, worth billions, finance flows are characterised by a maximum lack of transparency due to the highly complex legal requirements and the multitude of actors involved. The resulting error developments of the system are not met by the legislator by simplification of the unclear structures, but rather by constant wide use of penal instruments.
Hospital doctors are normally officials in the sense of the criminal law. The classic facts of acceptance of benefits and of bribery are applicable for them. Latest the so called “valvular-scandal” in the 1990s illustrated that hints for corruption within the health sector are pursued in a determined manner. Meanwhile the prosecution established specialised units for the examination of respective suspected cases. Also public health insurances are, since 2004, obliged to establish own units for fighting misconduct within the health sector.
Within the hospital area compliance-systems for prevention of criminal frontier crossing between legal third party funds and prohibited corruption have already been permanently established. Here the attention of principles of the equivalence of performance and returns, the separation of doctoral services and donations, the documentation of all forms of collaboration, their approval by the hospital’s responsible units as well as the transparency for service relationships, became a key role.
For the area of registered doctors the Federal Supreme Court decided in 2012 that the basis of applicable law punishability on grounds of bribery can be eliminated. The legislator took this as an occasion to close this criminal liability loophole. According to § 299a StGB – this regulation will probably come into force by the beginning of 2016 – one is punishable, who as a practitioner of a healing profession demands an advantage, who gives or takes a promise, that he, at the prescription of or at the delivery of pharmaceutical-, healing or medical tools or of medical products or of the supply of patients or examination material prefers one competitor in an unfair manner or hurts his professional duties for maintaining the medical possessions independence.
With the reference to the professional duties for medical independence, the legislator enters new grounds. Currently there is no case law of the criminal court concerning this question, when and for which behaviour such a breach of duty and the possibility of a punishability is given. In order to avoid punishability risks it is thus unavoidable to examine all contracts- and service relationships of the registers doctor’s practice on risk-entailing content.
ECKSTEIN & KOLLEGEN can, due to their long-term experience in this area of medical criminal law perform such an examination and prepare and support the implementation of a, on the size and specialist area of the practice individually customized, compliance concept.
It can be further expected that the revised legal situation will lead to a multitude of criminal proceedings. Also in such a case, the acknowledged defence lawyers at ECKSTEIN & KOLLEGEN assure an optimal awareness of the rights and interest of affected parties.