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Berlin und Heidelberg: Springer; 23 ff. Beck; sowie Fehn K. Nach Katzenmeier C. BGB vgl. Immerhin kann er sich insoweit dialogisch-kommunikativ damit auseinandersetzen und je auf den Krankheitsverlauf bezogenen fachkundigen Rat einholen. Lipp V. Beck; f. NJW ; 62 39 : Anderer Auffassung Beckmann R. Marburg: Tectum; ff. Der Wille des Patienten ist entscheidend.
BtPrax ; 18 4 : und sowie Lipp V. Untersagung des Patienten und einem konkreten behandlungsbezogenen Wunsch im Hinblick auf die Aufgabe des Vertreters praktisch gesehen keine Rolle. Die Patientenautonomie am Lebensende: Ende der Patientenautonomie?
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Zur Feststellbarkeit und Durchsetzbarkeit des realen oder hypothetischen Willens des Patienten. Anders offenbar Beckmann R. MedR ; 27 10 : m. NJW ; 63 32 : — Beck; sowie Beckmann R. MedR ; 27 10 : MedR ; 27 10 : ; vgl. Im Zweifel hat hier der Lebensschutz Vorrang. BGB ist insoweit unerheblich.
Zudem sollen Vertrauenspersonen des Betroffenen einbezogen werden. BtPrax ; 18 4 : — NJW ; 62 39 : , der kritisiert, dass das 3. Year Also available at. Instead of enforcing a professional code, which would lead to frequent denouncements and to political and religious control, the medical representatives should rather fight for the admission of all doctors to practise under the sickness insurance system, for more doctors in rural and poor regions and for more school and ship doctors. Developments appeared to follow similar lines as those in Saxony and Prussia.
In two sessions of the Bavarian Parliament Landtag , on 25 and 26 February , the preparations for official medical courts of honour with disciplinary powers were welcomed by several speakers. That is worse pay than what a luggage carrier [at the station] gets. It is clear then why, as it has happened in Munich Item No. Several items of the code concerned the medical fee, aiming mainly at preventing undercharging and underbidding. Of particular significance was item No.
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Moreover, underbidding among doctors could be avoided in this way. The committees of the medical district societies would be entitled to warn doctors whose conduct was seen as deviating from the professional code, which was supposed to be issued by a decree from the Ministry of the Interior. This spectrum of punishments closely resembled that in Saxony and Prussia, and — as in these two states — there was a provision for increasing punishment by publishing the verdict. The accused would be able to appeal to a court of honour of second instance in Munich, the Ehrengerichtshof, composed of eight delegates from the medical chambers one from each and a government official appointed by the Ministry of the Interior.
Although influenced by both the Prussian and the Saxon example, the Bavarian draft bill deviated deliberately in one respect from the Prussian model, which had done without a binding professional code.
Bavaria followed instead the example of the Saxon law of in combining disciplinary bodies with a code of professional conduct. The task of the Saxon courts of honour, which were formed in the medical district societies out of at least three members, was to decide about allegations of breaches of the professional code and to arbitrate in quarrels between doctors or a doctor and another person.
Dr Friedrich Ernst Aub, who was present as a member of parliament, agreed with this action. It seems that these events were a significant factor in the subsequent developments which caused much irritation in the medical chambers and resulted in the failure of their plans for a Bavarian law on medical courts of honour.
Von Landmann regarded a professional code as superfluous and as incompatible with the freedom of medical practice as guaranteed in the Trade Ordinance of the Reich. Although other members of the commission and Minister von Feilitzsch continued to be supportive of the professional code and draft bill as they had been proposed, considerable changes were made by the parliamentary commission.
In particular, the rule that contracts with sickness insurance organisations could only be made by special commissions of the medical district societies, not by individual doctors, was deleted, as were the detailed regulations on medical fees. For several years, discussions about stateauthorised courts of honour and a legally binding professional code fell silent, both within the Bavarian government and the medical representative bodies.
The matter was briefly raised in the plenary session of the Bavarian Reichsratskammer on 10 May with suggestions for a more generic medical professional code and for more government administration officials in the courts of honour, but Minister von Feilitzsch predicted that these ideas probably would not find the approval of the medical profession, which would have to make a new submission to the government anyway, for procedural reasons. Although the chairman of the court of honour, Dr Kastl, who was simultaneously chair of the Munich medical district society, had later made a personal declaration of honour for Dr Hutzler, thus qualifying the second part of the verdict, the latter shot himself on Easter Sunday The affair led to severe public criticisms of the court of honour concerned, which in turn tried in vain to defend itself through a civil libel action.
He also recommended the creation of more formal appeal courts at the medical chambers and asked the government for advice on how to subject all doctors in Disciplining Doctors 29 Bavaria to a professional code and courts of honour system. The continuing necessity of such disciplinary control was incontrovertible for him: That courts of honour In no academic profession — including lawyers — are personal collisions, the temptation to gain advantages through lesser or greater duplicity, as well as the reluctance to submit to firm norms, more frequent than among the doctors.
However, the Higher Medical Commission, which subsequently had to scrutinise the draft, insisted on deleting the crucial rule that contracts with the sickness insurance organisations should only be made through contract commissions of the medical district societies, and it also deleted a section that declared it as desirable for every doctor to be a member of a professional and economic organisation. Only in this revised and thus considerably weakened form did the Minister approve the code in April , as a provisional basis for the decision-making in courts of honour proceedings. In response to a draft submitted by the medical chamber of Upper Bavaria, which had the support of six of the eight Bavarian chambers, the Ministry of the Interior replied in June that it was too early for such an ordinance and that it was advisable to wait to see how the professional code of worked in practice.
Responding to a petition from the medical chambers in late , the Ministry of the 30 Doctors, Honour and the Law Interior prepared a detailed draft bill including the organisation of the medical district societies and chambers, a professional code and regulations on medical courts of honour. Moreover, the examples of Prussia, Saxony, Baden and Brunswick, which, by then, all had medical representative bodies with legally authorised disciplinary powers, was quoted.
In the early years of the Weimar Republic, the old Royal decree of July continued to be the basis for the operation of the district societies and medical chambers. The disciplinary sanctions included warnings, reprimands, exclusion from the medical district society, fines up to 10, Mark and in special cases publication of the details. The transition to a state-authorised disciplinary jurisdiction occurred later than in most German states during the Weimar Republic.
Doctors, Honour and the Law: Medical Ethics in Imperial Germany
Disciplining Doctors 31 1. Thanks to surviving detailed records of the Prussian ministerial bureaucracy, it is possible to characterise these activities on a quantitative basis. In addition, the Prussian Court of Honour for Doctors, that is the appeal court in Berlin, regularly published collections of its decisions that were thought to be of substantive or procedural importance.
On this basis I will discuss which issues of professional conduct kept the medical courts of honour busy, how they explained their decisions and to what extent the fears of the critics turned out to be justified. These data are available from , and I have compiled them for the remainder of the Kaiserreich, including the years of the First World War, and the early years of the Weimar Republic. In relation to the number of doctors who were subject to their jurisdiction, this meant that approximately 3 or 4 allegations for every doctors were made each year.
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During the war, the number of accusations of misconduct fell to approximately 2 per practitioners — a decrease which can probably be explained 32 Doctors, Honour and the Law Table 1. HA Rep. This explanation is also supported by the fact that the number of received allegations per doctors rose again to the pre-war level of over 3 in the early s. In the period before the First World War, approximately 1 in 3 accused practitioners were given a disciplinary sentence; during and after the war the proportion of punished cases halved.
The latter decrease in punishments can be explained with the fact that a general amnesty for disciplinary offences was pronounced after the war, in , so that many sentences issued during the war were suspended. According Disciplining Doctors 33 to the published official sanitary reports for Prussia from to , the 12 provincial courts of honour of first instance i.
In the period from to , their number rose from 14, to 17, see Table 1. In the 12 years from to , the Prussian medical courts of honour reported a total of 1, disciplinary punishments. If one ignores multiple offenders and changes in the composition of the profession through deaths and new entries, as many as 1 in every 10 Prussian medical practitioners may have been disciplined by a court of honour by the beginning of the First World War.
Doubtlessly then, the Prussian medical courts of honour were busy institutions. But who kept them so busy, and what types of mis- conduct gave reason for disciplinary punishment? The ministerial records provide a rough breakdown of the allegations of misconduct according to their source see Table 1.
The majority of allegations of misconduct, however, were made by other doctors, reflecting a strong culture of denouncement and self-discipline within the profession. In the early s, shortly after the courts of honour had started to operate, the proportion of this source of accusations was over 50 per cent, then levelling at approximately 40 per cent.
It dropped during the war to approximately 20 to 30 per cent, only to rise again to pre-war levels in the early years of the Weimar Republic. Before the war, approximately 5 per cent of the cases were initiated by the accused practitioners themselves in order to clarify an issue or to clear their names — an indication that the courts of honour were widely 34 Doctors, Honour and the Law Table 1.
Approximately only 1 per cent of accusations were received from anonymous sources. The large proportion of accusations made by other doctors already indicates that the problem of fierce competition between practitioners, the key issue which had been highlighted in the debates about the need for courts of honour, played a main role. The Ministry for Medical Affairs did not require of the courts of honour to provide figures on the distribution of cases over particular types of medical misconduct.
Only the types of disciplinary offences as such, which a court of honour had punished in the course of the year, had to be mentioned in its annual report to its provincial government. The medical court of honour for Brandenburg and Berlin performed this task very diligently, so that the surviving reports which were Disciplining Doctors 35 forwarded to the Ministry for the years to collectively give a picture of the most frequently named disciplinary offences.
In terms of the development of the numbers of allegations received and punishments imposed, the Brandenburg—Berlin court of honour broadly followed the collective trends of the 12 Prussian courts of honour see Table 1.
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For the period from to one finds an average of 4. However, the ratio of disciplinary punishments to the number of doctors was about the same in that period, that is approximately 1 per practitioners 0.
The higher number of allegations for Brandenburg—Berlin can probably be explained by the greater concentration of doctors practising in the capital and thus greater competitiveness among them. Table 1. Clearly, problems in the professional relationships between doctors, rather than in the doctor—patient relationship, led most frequently to disciplinary punishments. Some doctors also insisted that the freedom of medical practice guaranteed in the Trade Ordinance permitted them to advertise their services as they liked.
However, already in May and July , and again in December , the Prussian Court of Honour for Doctors, that is the central appeal court in Berlin, had issued decisions which established the principle that blatant advertising constituted a violation of the professional honour of doctors and that disciplinary punishment for this offence did not contradict the Trade Ordinance.
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Refusal of medical assistance, however, was sometimes justified with the provisions of the Trade Ordinance, which in principle allowed this. Against the spirit of the Trade Ordinance, the courts of honour tried to create sharp distinctions between medical doctors and lay practitioners. The medical 38 Doctors, Honour and the Law chambers and the Association for the Doctors of Germany for the Protection of their Economic Interests the so-called Hartmann-Bund, founded in made their members give their word of honour that they would not enter a contract with a health insurance organisation without the permission of their contract commissions.
If that promise was broken, the medical courts of honour pursued disciplinary proceedings against the doctors concerned, especially in periods of dispute with the insurance boards. This can also be concluded from the decisions of the Prussian Court of Honour for Doctors Ehrengerichtshof which were regularly published by the Ministry. As shown in Table 1.