Introduction

On July 29 2015 the government introduced a draft bill to amend the Criminal Code (for further details please see "Corruption in healthcare sector becomes criminal offence"). This draft bill was discussed in all lobbying sectors and had various pros and cons. In particular, the pharmacists's lobby tried to differentiate between medicinal products prescribed by doctors and medicinal products ordered by pharmacies from the pharmaceutical industry. The main argument for this differentiation was that ordering a medicinal product is a simple commercial act rather than an act specific to the healthcare sector, and thus a pharmacist acting incorrectlydoes not act on the same healthcare level as a doctor or clinic acting in direct contact with a patient. However, this argument was unsuccessful and the code now covers not only doctors, dentists, psychotherapists and physiotherapists, but also pharmacists, nurses, midwives and speech therapists.

On April 14 2016 the final bill was passed by Parliament and on May 13 2016 the upper house also approved the bill. The bill was then passed to the federal president for signing in order to become effective. It should become final in Summer 2016.

Criminal Code

The Criminal Code was amended mainly by the inclusion of two new rules.

Section 299a of the code will make corruption a criminal offence for anyone with a job in healthcare if that job requires state-regulated education. Accepting gifts or similar benefits for issuing prescriptions or for advising a patient to visit a clinic or doctor will be considered a criminal offence.

Conversely, according to Section 299b, the person granting the benefit will commit a criminal offence if he or she bribes such persons. This affects representatives of medicinal product and medical device manufacturers, as well as of laboratories and other industry members. Legislation no longer differentiates between whether individuals working in healthcare are employed in state hospitals or private practice.

The new Section 301 reads as though it is unnecessary to make punitive applications in healthcare bribery cases. If this is correct, the new bribery law for the healthcare sector will be stricter than that in the commercial sector, where Section 299 requires punitive applications. However, the wording of Section 301 and the reasons for the bill remain unclear, so any developments will become apparent only once in practice.

Expected developments

The new bill implements a standardised procedure for exchanging experiences between all functions that monitor bribery in the healthcare sector. According to this procedure, the public prosecution departments of the various federal states will be expected to participate.

Public prosecution departments will be expected to follow bribery developments both through monitoring and on a political level, as it is expected that criminal prosecutions will increase dramatically once the new law becomes effective. Some federal states (eg, Bavaria) have already announced that they will establish certain public prosecution departments with the specific function of monitoring bribery in the healthcare sector.

For further information on this topic please contact Tatjana Schroeder at SKW Schwarz Rechtsanwälte by telephone (+49 69 630 001 0) or email (t.schroeder@skwschwarz.de). The SKW Schwarz Rechtsanwälte website can be accessed at www.skwschwarz.de.

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