New draft legislation to combat corruption in the healthcare sector introduced (Section 299a of the German Criminal Code)

Background

The draft of the new Section 299a of the German Criminal Code is the reaction to the decision of the German Federal Court of Justice of 29.03.2012 (BGH – GrS – St 57/202). The Grand Criminal Panel held in its decision handed down at that time that doctors in private practice (licensed to treat patients insured under the statutory public healthcare scheme) are not “public officials” and also established that doctors in private practice are also not “agents” in the meaning of Section 299 of the German Criminal Code. Impermissible benefits granted to doctors in private practice in order to influence their conduct as doctors could therefore not under anti-corruption legislation be considered as giving bribes in commercial practice (Section 299 of the German Criminal Code) or as being the bribery of public officials (Sections 331 ff. of the German Criminal Code). The resulting preferential treatment of doctors in private practice compared to hospital doctors was therefore generally seen as being unjustified.

Content of the new provision

According to the draft legislation, any “healthcare professional” who – put briefly – requests, receives or accepts the promise of a benefit for unfairly giving preferential treatment to another person or party with respect to the procurement, prescription or dispensing of drugs and medical products or the referral of patients or in any other way breaches his or her professional obligations can in future be punished with imprisonment of up to three years. Anyone who offers, promises or grants such benefits to a healthcare professional will incur the same penalty.

This new provision is intended to make activities relating to “pharmaceuticals marketing”, such as impermissible payments for prescribing drugs in the form of rebates or kick-backs, a criminal offence. “Referral bonuses”, which doctors in private practice receive from other doctors, hospitals, laboratories or medical supplies stores for referring patients, are also, however, explicitly mentioned in the draft’s explanatory memorandum.

Although with its reference to all “healthcare professionals” the draft of Section 299a of the German Criminal Code initially goes clearly beyond the doctors in private practice addressed in the decision of the German Federal Court of Justice, the current draft does contain a restriction compared to the last draft bill of the Federal Council in that only “healthcare professionals” for whom professional associations exist are covered by the legislation as potential accepters of bribes or benefits. These are only the “academic healthcare professions”, i.e. besides doctors, these include dentists, vets, chemists and psychotherapists. “Paramedical healthcare professions” such as nurses, occupational therapists or physiotherapists are on the other hand no longer covered by this provision.

Outlook

In view of the stated legislative intent of regulating this issue quickly, as is also reflected in the current Coalition Agreement, a rapid legislative process is to be expected. It is still, however, unclear whether this will be based on the Bavarian draft submitted to the Federal Council because the Federal Ministry for Justice and Consumer Protection has also announced its own legislative proposal.

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