Publications by the law firm

The criminal offences against corruption in healthcare introduced on 4 June 2016 have contributed to the wider adoption of healthcare compliance and corresponding preventive efforts by businesses in the healthcare sector. Official crime statistics nevertheless indicate that these offences play only a minor role in criminal justice practice. This is the case despite so-called net-widening effects resulting from criminal policy measures such as the establishment of units to combat misconduct in healthcare and the specialisation of investigating authorities. The healthcare market is changing. New legal questions concerning sections 299a and 299b of the German Criminal Code (StGB) arise in connection with patient support programmes, direct-to-patient models and the prescription of digital health applications. Thus, despite the resolution of some disputed issues, the development of the legal doctrine surrounding sections 299a and 299b StGB remains unfinished even after ten years.

Criminal case law has developed the legal doctrine of healthcare billing fraud in three stages. Initially confined to particular forms of unlawful billing by physicians providing statutory health insurance services, it first established an approach to fraud that depended on social law. Its premises were then extended to private medical billing and hospital billing. Today, the courts take a comprehensive approach tied to healthcare law, under which any violation of healthcare legislation by various participants in the healthcare sector may be relevant to fraud. The article analyses this development and sets out principles for limiting the reach of criminal law in response.

The courts have taken the view that a breach of the prohibition on arrangements under pharmacy law (section 11(1), first sentence, of the German Pharmacy Act, ApoG) may support an allegation that a pharmacist has committed fraud against the payer funding the supply of medicines. The position taken here, however, is that section 263 of the German Criminal Code (StGB) does not apply in these cases because there is no deception. Section 11(1), first sentence, ApoG is a rule governing market conduct, and its violation has no effect on the pharmacist’s entitlement to payment. In addition to the situations already regulated by statute, exceptions to the prohibition that are not expressly provided for in the legislation (praeter legem) must be recognised where the relevant agreements improve the safety of medicines or the security of their supply.