Legal framework of medical ethics

Deontology is a set of duties attached to an activity. It is codified for many professions (doctors, lawyers, priests, judges, etc.) and is intrinsically linked to ethics, i.e. to personal and collective philosophical considerations. The purpose of the following article is to provide a concise description of the legal framework in Belgium. Laws governing the practice of medicine are dealt with in another article.

Belgian legislation can be consulted online.

The legal framework for the art of healing

This is set out in Royal Decrees (R.D.) 78 (practice of the healing art in the broadest sense, including para-medical professions) and 79 (relating to the Order of Physicians), as well as in a number of articles of the penal code and laws, specific or otherwise, concerning medicine in one way or another.

What is the legal difference between a medical act and assault and battery (= the basis of the doctor's immunity)?

• necessity (diagnostic, preventive, curative)
• diploma and accreditation in relation to other medical practice conditions
• free and informed consent of the patient
• conformity with scientific data and practice
• absence of criminal intent
• proportionality

The law imposes an obligation of means, not of results (exceptions: cosmetic surgery, dental prostheses). However, as a result of increasingly frequent civil proceedings aimed at obtaining compensation for medical malpractice, we are witnessing an increase in the price of care and a change in practices (the tendency is no longer to seek first and foremost the good of the patient, but to ensure that we cannot be blamed for anything, even if this has a negative impact in terms of public health. Ex: increase in the number of caesarean sections for "medical reasons"). The socialization of medical risk is constantly evolving (creation of a collective fund for potential damage resulting from medical practices, with no time limit and no need to prove fault, but a lump sum). At present, the general law on civil liability can be applied to doctors if 3 conditions are met:

• damage is proven
• fault is proven
• the link between the fault and the damage is demonstrated.

Liability coverage is not mandatory.

Royal Decree 78

Lays down conditions of practice, protecting access to the medical profession:

• EU medical degree
• visa from the provincial medical commission
• registration with the medical association

Establishes the manner of practice:

• no legal restrictions on diagnostic or therapeutic means
• no combination of medicine and pharmacy
• obligation to provide continuity of care and an on-call system
• obligation to transmit medical records to any physician chosen by the patient
• right to fees, ownership of the doctor
• prohibition on being a nominee
• prohibition on advertising (medicine = off-the-shelf)
• prohibition on linking fees to effectiveness of treatment

Defines Provincial Medical Commissions (CMP):

10 CMPs made up of 4 doctors (including president and vice-president), 2 dentists, 2 pharmacists, 2 veterinarians, 2 midwives, 2 nurses, 1 paramedic and 1 Ministry of Health official. Equivalent to a meeting place for the province's various healthcare players.

Their missions:

• general :
  • propose public health measures
  • collaborate in the fight against communicable and quantifiable diseases
• special :
  • verify and endorse the qualifications of doctors, pharmacists, veterinary surgeons, nurses, etc.
  • withdraw or subordinate visas on the basis of expert opinions for psychological or physical reasons
  • ensure compliance with the law in these professions
  • denounce illegal practice
  • inform and monitor on-call systems

Also defines:

• the practice of dentistry, physiotherapy, nursing and the paramedical professions.
• these practices are therefore also protected professions

Royal Decree 79

Governs the creation of the Order of Physicians:

• made up of :
  • 10 provincial councils: number of full members and substitutes set by the King, 6-year terms renewable by half every 3 years, elected by unsuspended members, compulsory voting, one legal assessor appointed by the King, consultative voice of the CN member elected by the CP, elects its president, vice-president and secretary [= bureau].
  • 2 appeals councils: Dutch-speaking and French-speaking, 5 doctors elected by the provincial councils + deputies, re-electable 6-year terms + 5 appeal court members appointed by the King, one clerk, compulsory vote, chairman and rapporteurs appointed by the King
  • a national council: 1 FR and 1 NL chamber, 10 doctors elected by the provincial councils, 6-year terms renewable once, 6 doctors appointed by the King on presentation by the faculties of medicine + substitutes, 1 clerk doctor of law appointed by the King, 1 president magistrate of the court of cassation, 1 vice-president per chamber elected by the members, president + vice-presidents + jurist = bureau
• public-law entity
• includes all doctors registered on the roll of the order of the province in which they practice (registration on a single roll)

Missions of the Provincial Councils:

• Draw up the roll of doctors
• Ensure compliance with professional ethics, punish professional and non-professional misconduct
• advise members on problems not covered by the code of ethics
• Report cases of illegal practice
• Arbitrate fee disputes
• Respond to court requests for advice on fee disputes
• Set fees

Missions of the Appeal Councils:

• To hear appeals against disciplinary decisions by provincial councils:
• Appeal by the doctor sanctioned, the assessor magistrate of the provincial council or the (vice)president of the national council.
• Appeal has suspensive effect
• Only additional recourse = Cassation Court

Mission of the National Council:

• draw up and adapt the code of medical ethics (principles and rules of morality, honor, discretion and dedication required by the profession)
• list disciplinary sanctions
• issue opinions at the request of authorities, professional groups and provincial councils
• set membership fees
• maintain relations with orders in other countries
• take all measures necessary to achieve the aims of the association.
• Disciplinary sanctions of the Order's Council:
  • warning
  • reprimand
  • suspension (maximum 2 years)
  • striking off

Dentists

Dentistry covers any procedure performed in the mouth with the aim of preserving, healing, straightening or replacing the dental organ. Conditions of practice: legal diploma, CMP approval. There is no order. The rules are broadly the same as for doctors, except that for them, the obligation of means and results is customary.

Physiotherapists

Conditions of practice: legal diploma and CMP approval. Can only practice on medical prescription specifying maximum number of sessions. At the request of the prescribing physician, must provide a report on the treatment carried out and the results obtained. There is no order of physiotherapists, but a National Council set up by the Ministry of Health to give advice.

Nurses

Conditions of practice: diploma, CMP approval. No order, but there is a National Council attached to the Ministry of Public Health to give advice. The 1990 Royal Decree defines the acts that can be performed by nurses without a doctor's prescription or on a doctor's prescription.

Other para-medical professions

Occupational therapists, speech therapists, etc.

These are also protected professions (diploma and CMP approval). No order, but a national council set up by the Ministry of Public Health to give advice.

Author(s)

Dr Shanan Khairi, MD