In an as yet unpublished appeal decision from 7 February 2020 (decision Hildesheim Regional Court 15 Qs 1/20), the Hildesheim Regional Court has ruled that the referral of patients to a manufacturer of dietary supplements by doctors does not qualify as an offence in accordance with §§ 299a/b StGB.
This is because the “referral” must always commence in favor of an authorized service provider in accordance with § 299b (3) StGB. These, however, are only those legal entities or persons who are authorized by health insurance providers, who offer services and bill the providers for these services.
Thus, in the case of producers of dietary supplements, this merely constituted the “referral” of mere “customers” rather than patients (see our blog entry from 5 February 2020).
The Regional Court went on to state that the protected interest of §§ 299a/b StGB – e.g., trust in the integrity of a healthcare professional’s decision and the regulatory mechanism structured by competition law – was not affected in the case in question. This is because the legislator only considered the “healthcare professional-patient relationship” to be worthy of special protection, which is usually departed if neither medicines, aids or medical products are involved, nor services are provided that are billable to the health insurance providers.
However, it should be emphasized that, naturally, the decision merely concerns the criminal law related aspects of the practiced business model. Whether the (possibly incentivized) medical recommendation of certain (non-medical) compounds is admissible under professional law – particularly against the backdrop of § 31 et seq. of the Professional Code for Physicians – was not the subject of the decision.
