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 (false certificates, abortion, non-assistance to a person in danger, professional secrecy, organ removal and transplantation, euthanasia, patient rights, human experimentation, in vitro embryo research, etc.).
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 (on form only)
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 = any intervention performed in the mouth with the aim of preserving/healing/straightening/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.
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