The German Ministry of Justice recently provided a new draft anticorruption law explicitly referring to the healthcare sector. If adopted, this law may affect a broad array of businesses that collaborate with German healthcare professionals (“HCPs”). The proposed law is similar to one offered in 2013, and a draft law that Bavaria recently provided to the German Federal Assembly (Bundesrat).
Current anti-corruption provisions in the German Criminal Code prohibit corruptive agreements with respect to granting an undue benefit or offering a bribe to public officials and to employed HCPs, but have gaps with regard to other HCPs. For example, they do not cover activities involving the principal of a commercial practice or business (e.g., a self-resident physician or a pharmacist) or other HCPs who are not public officials and/or not employees. This could lead to inconsistent results; for example, granting an undue benefit to an employee of a HCP in private practice may be prohibited, but not doing so with regard to the HCP himself/herself. Although other German laws, such as the German Health Care Advertising Act (Heilmittelwerbegesetz – “HWG”), may prohibit such activities, the criminal laws do not.
If the draft law is adopted, pharmaceutical and medical device companies will face greater risk in their interactions with HCPs who are self-employed or work at privately held or funded hospitals, or other medical personnel (e.g., some nurses and pharmacists) who are involved in providing public health care.