Facts
Regional Administrative Tribunal
Supreme Administrative Court
Comment
Since the beginning of the covid-19 pandemic, false information about viruses and vaccinations has become increasingly widespread. In a recent decision, the Austrian Supreme Administrative Court dealt with a physician who had published an article containing virus- and vaccination-sceptic opinions on his website prior to the pandemic.
The physician is a general practitioner, a self-help teacher, a homeopathic supervisor and an author. He was found guilty by the disciplinary commission of the Chamber of Physicians for publishing on his website an article on vaccination, which denied the existence of sickening viruses and stated that:
- vaccination never protects against disease;
- diseases are not known in nature; and
- no diseases have disappeared through vaccination.
Regional Administrative Tribunal
The Regional Administrative Tribunal(1) dismissed the appeal and declared the appeal to the Supreme Administrative Court to be inadmissible. The Tribunal found that the appellant was the owner of the website and responsible for its content. With regard to vaccination, the website featured a "heretic essay" written by the appellant. A few weeks prior to the essay, the media had reported about the death of a girl from a tick bite. In the essay, the appellant argued that:
- labelling a virus as a pathogen is nothing more than speculation, assumption or hypothesis;
- people can die from snake bites because of the snake's poison, but people cannot die from the bite of a non-toxic tick. Instead, a tick bite may lead to a skin irritation, which is a sign of healing;
- diseases appear as a result of chance if nature is not understood properly. If diseases are seen instead as the body's endeavours to heal, which should not be obstructed, everything will be easier; and
- instead of chemical vaccination, people should strive to improve their understanding of natural contexts and have the courage to follow their intuition. Chemical vaccination can never help against diseases because people do not contract bacteria or viruses; instead, they are helpers or broken cell nuclei – in other words, metabolism products that are exuded or incorporated by the body.
In the court hearing, the appellant stated that:
- bacteria and viruses are not the cause of diseases;
- vaccination has neither exterminated a disease nor made it disappear;
- diseases are known in nature. If the appellant wrote that diseases were not known in nature, this was meant as provocative statement to make people think. Diseases are purification processes of the organism of the body and soul;
- viruses are not agents for diseases. They exist, but they are not pathogens;
- tick-borne encephalitis is not the consequence of a tick bite; and
- medicines obstruct healing processes in the brain and spinal system.
The medical expert appointed by the court explained that:
- diseases are caused by environmental influences and pathogens;
- a tick by itself very seldom causes death but a bite transfers pathogens which may cause diseases, and among them, deadly diseases. The existence of such pathogens is proven;
- the infections that may be transferred by ticks include:
- Borreliose (transferred through bacteria); or
- tick-borne encephalitis (transferred through a virus).
Therefore, bacteria and viruses can be pathogens. The appellant's opinion that no disease-causing viruses exist, therefore, was contrary to the current state of science;
- the pox virus has been exterminated, and other pathogens have been significantly reduced. Another example is hepatitis C, which shows that a disease is not a purification process. There is a specific vaccination which protects with a high rate of effectiveness;
- adverse effects of vaccines are rare but a known fact. Education on the risk and consequences of a medical intervention is necessary; and
- appropriate use of medication starts healing processes, which depend on several factors. Appropriate medication never blocks healing processes.
In summary, the appellant's statements on vaccination did not correspond to the current body of knowledge.
The Tribunal therefore found that the information on the appellant's website contradicted his obligation not to pass on medical information that does not correspond to the medical body of knowledge, medical experience or facts. The statements in the article did not correspond to the current state of medical science. The curtailment of medical freedom of expression, according to section 53 of the Act on Physicians and section 2 of the Ordinance of the Austrian Chamber of Physicians on permissible medical information in public, serves the protection of health.
The appellant appealed to the Supreme Administrative Court, which dismissed the appeal.(2) According to section 136 of the Act on Physicians, physicians are guilty of a breach of discipline if they compromise the reputation of the profession by their conduct or infringe professional duties. Section 1 of the Ordinance of the Austrian Chamber of Physicians on providing information to the public provides that physicians must not provide unobjective or untrue information, or any information that impairs the reputation of the medical profession.
"Unobjective" information refers to any medical information that contradicts scientific rationale or medical experience. "Untrue" information is information that does not correspond to facts. "Information impairing the reputation of the profession" refers to any statement on physicians, their activities and medical methods, the presentation of untruthful medical exclusivity or an individual's personal opinions or the services they provide.
Section 3 of the Ordinance prohibits the advertisement of pharmaceuticals, medical devices and other medical products, except for information that is objective, true and not to the detriment of the reputation of the profession.
The Supreme Administrative Court held that the Administrative Tribunal had considered the appellant's statements on his website as an infringement of the reputation of the profession and his professional duties. An infringement of the Ordinance qualifies as unprofessional conduct according to section 136 of the Act on Physicians.(3)
Professional duties comprise both the conduct of the physician in the exercise of the profession and extra-professional conduct. When assessing extra-professional conduct, a strict measure has to be applied. There is no doubt that a practitioner's internet presence is in connection with the exercise of the profession, since it obviously serves to attract attention. It also fulfils advertising purposes by referring to the opening hours and the offered methods of treatment.
The bold and simple statements obviously served the advertorial promotion of treatment methods, as opposed to the methods which were dismissed. According to the expert's opinion, the statements did not comply with the current state of science. Consequently, there was no hesitation when the Administrative Tribunal established the facts on the basis of the expert's opinion.
Insofar as the appellant raised an infringement of the freedom of opinion and expression, it must be noted that the Ordinance provides for a restriction on advertising for the medical profession. The prohibition of unobjective or untrue information, or information detrimental to the reputation of the profession, is both in the interests of the medical profession and in the interests of the community to be led by objective considerations when using medicinal services.(4) The appeal therefore had to be dismissed.
The decision clearly shows the limits of the freedom of expression in ads by healthcare professionals. The decision should not be misunderstood as a necessity to "streamline" statements along the mainstream of medical science. Dissenting opinions are possible and permitted, but they must be based on scientific medical findings.
For further information on this topic please contact Rainer Herzig at Preslmayr Attorneys at Law by telephone (+43 1 533 16 95) or email ([email protected]). The Preslmayr Attorneys at Law website can be accessed at www.preslmayr.at.
Endnotes
(1) Regional Administrative Tribunal Styria, 12 November 2018, 11 VwG 49.30-659/2018-14.
(2) Decision of 28 October 2021, Ra 2019/09/0140.
(3) See also Supreme Administrative Court, 25 November 015, Ra 2015/09/0045 and 29 October 019, Ra 2019/09/0010.