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On Friday 22nd June 2012 the German Federal High Court of Justice (Bundesgerichtshof or BGH) in Karlsruhe published a decision that doctors in general practice who write prescriptions for drugs may also accept gifts from the pharmaceutical companies who supply those drugs without fear of contravening the German law. The BGH explained that such independent general practitioners are neither public officials nor under a formal employment contract from the legal health insurance bodies. They are in effect free agents.
These doctors operate on their own account and therefore are not answerable to other bodies for their actions in this regard, even when treating patients under the German statutory health insurance system. Doctors who are independent registered practitioners are free to decide what they should do with regard to the acceptance of gifts from drug and other medical suppliers. This level of freedom to accept gifts does not necessarily apply to doctors working under an employment contract with a clinic or another medical treatment centre – under the terms of their employment they might lose their job as a result of such practices.
Specifically the following are examples of practices considered by the court before coming to its conclusion:
- A case in which a drug manufacturer paid a doctor more than 10,000 euros for lectures which never took place
- A case in which a pharmaceutical consultant paid cheques to independent medical practitioners totalling around 18,000 euros through an incentive scheme in which they received 5% of the sales price of certain drugs they prescribed
From a purely legal perspective these practices were judged to be within the law. If the government wishes them to become illegal it must change the law.
Certainly many people would consider that from a moral standpoint such activities are not appropriate. The patient expects his/her doctor to be independent of commercial influences when selecting the most appropriate treatment. Clearly the acceptance of a ‘gift’ or payment in relation to the prescription of a specific medication could create a conflict of interest for the doctor.
An alternative approach to that of changing the law would be for the medical community in Germany to address these practices by tightening its own code of medical ethics. This could provide for much tighter penalties or sanctions when doctors or medical establishments accept gifts or incentives from industry. At the same time the practice of rewarding ‘drug application studies’ or ‘trials’ using financial gifts for participating doctors should also be looked at.
The decision of the German Federal High Court is unlikely to represent the final stage in this process – it has merely clarified the interpretation of the current laws. If the medical profession is unable to deal with morally or ethically unsatisfactory practices by itself it is quite possible that the law makers will take steps to change the law. This could have a knock-on effect of reducing the level of independence currently enjoyed by the doctors.
For those of us in business faced with interpreting and ensuring we comply with the latest bribery and corruption legislation it is interesting to see the levels of moral ambiguity existing in some parts of the medical world. If you wish to find out more about the UK Bribery act, the US foreign Corrupt Practices act or are interested in the design of legal compliance programmes for businesses please take a look at my blog articles on these subjects, the first of which can be found here.
If you are interested in risk management as a general subject and would like an introductory text you can find out more about my book ‘Value TRAI Based Risk Management’ via this link.