On December 18 the National Council and on December 20, 2018 the Federal Council, the two chambers of the Austrian Parliament adopted the government bill on the amendment of the Act on the Medical Profession which provides for some significant amendments. The amendment will enter into force upon publication in the Law Gazette, expected in late January.
Palliative care and pain treatment
Due to the demographic development in recent years, there have been thoughts about the end of life and questions associated to human dignity as well as corresponding developments in medical treatment. The ethical borderline has been shown recently by the case of a physician. The doctor was charged for murder because he administered a 79-year-old patient morphine causing her death. Although he was acquitted both from the murder charge and the charge of negligent homicide, there remained significant discomfort and uncertainty in the field of palliative medicine.
By a new section 49a of the Act on the Medicinal Profession in the style of the German (template) professional rules the scope of the obligation of medical assistance of physicians for dying persons shall be laid down by law. Sec 49a (1) provides that the physician has to assist the dying persons under full reserve to their dignity and sec 49a (2) provides specifically that within the scope of quality assured palliative indications all measures may be set whose prevailing benefit is to relieve the heaviest pain and torments in relation to the risk that they may cause the acceleration to lose vital functions.
This amendment clarifies that pain relief prevails prolongation of life, but of course, shall not permit active euthanasia, which still remains prohibited in Austria.
The rules on the training of emergency physicians date back to the late 80s of the last century, which provide only for the completion of 60 training units. The amendment provides that the training shall be expanded to 80 units providing for a defined acquisition of emergency treatment skills (e.g. assessment of the situation, prioritization, coordination, evacuation, documentation) and a final examination. The acquisition of specific emergency treatment skills shall be achieved by the best possible use of the resources under the new medical training (starting with a basic formation which provides already basic knowledge) within the scope of the training of junior doctors in general practice and medical specialization. Moreover, the law now provides for mandatory continued education of 16 units in the first 3 years of practice. The chamber of physicians shall be entitled to enact detailed regulations and to supervise the training.
Employment and substitute of physicians in surgeries and group practices
The medical profession is a liberal profession in Austria. To the exception of doctors in hospitals physicians therefore are self-employed and could not employ other physicians. By the new section 47a it is now possible that physicians in single practice may employ other physicians to the extent of one full-time equivalent and group practices may employ other physicians to the extent of two full-time equivalents. This employment is limited to the specialized field (including general practice) of the employing physician or the group practice.
The interested reader might remember the article on spiritual healing1. The Supreme Administrative Court had held that the delineation of the medical reserve must be made on objective criteria. For an activity to belong to the medical reserve, the applied method must have a certain degree of rationality and the performance must require the comprehensive knowledge typically provided by medical training.2 Obviously compelled by this decision the draft bill of the ministry of health and social affairs provided an amendment to the definition of the exercise of the medical profession, which comprised any activity based on medical-scientifical knowledge for direct or indirect application to humans by adding the words "including complementary and alternative methods of treatment". This proposal, however, was already removed from the government bill due to heavy opposition from osteopaths, physiotherapists, speech therapists, biologists and other health care professionals. The proposed amendment could have reserved these services exclusively for physicians without achieving the intended purpose: sound "complementary and alternative methods of treatment" are also based on scientific knowledge and therefore the amendment would not have helped to qualify "spiritual healing" as illegally exercising a medical profession.
Originally published by International Law Office.
2. Supreme Administrative Court, 26 April, 2018 (Ro 2017/11/0018-3).
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