Authority cannot confirm rejection of medical code of conduct
Published: Monday, Jul 8th 2024, 12:20
Volver a Live Feed
The authorities cannot issue a man suffering from cancer with a confirmation that the doctors treating him in the future are released from the ethical code of conduct. The Federal Supreme Court has ruled that this must be arranged individually.
In this specific case, the man contacted the health authority of the Canton of Bern. He requested confirmation that he had opted out of all SAMS guidelines with ethical requirements with regard to the doctors treating him in the future and that these postulates should not be applied to his treatment. He also requested that the FMH doctors following his request should not be sanctioned.
In a decision published on Monday, the Federal Supreme Court states why such a so-called declaratory ruling cannot be issued by the authorities. The complainant had thus unequivocally "opted out" of the SAMS medical-ethical guidelines in exercising his right to self-determination. He had thus created a clear legal starting position for the medical staff treating him in the future.
According to the Federal Supreme Court, the SAMS guidelines constitute a private set of rules that can be consulted for the interpretation of legal norms. However, the provisions of the applicable law take precedence. In this context, it should be noted that any medical intervention constitutes a violation of personality rights and is unlawful if the patient has not given their consent.
In the event that the complainant were to become incapable of judgment, he could protect himself with a living will. In it, he can specify which medical measures he agrees to. The living will is an instrument for enforcing the right to self-determination.
Web of rules
With regard to the request for sanctions to be refrained from, the Federal Supreme Court states that the complainant is aiming to examine an abstract legal situation without reference to a sufficiently specific case. Such a confirmation has the character of a legal proposition and can therefore not be the subject of a declaratory ruling.
Any future disciplinary proceedings between the health authority and the doctors treating the complainant would be subject to federal law. The Bern Administrative Court, as the lower instance, had correctly held that the Medical Professions Act conclusively regulates the professional duties of persons practising a university medical profession.
The SAMS guidelines declared applicable in the FMH Code of Ethics are binding for all FMH members. They are an aid to interpretation in connection with the application of the Medical Professions Act.
In view of this interdependence between the legal order and the rules of professional conduct, the Federal Supreme Court finds that it is inconceivable that any specific rights or obligations for doctors in connection with all medical treatments of the complainant could be established.
Furthermore, the purpose of disciplinary proceedings under supervisory law is to ensure that the supervisor exercises their profession correctly and not to realize individual needs. (Judgment 2C_172/2024 of 27.5.2024)
©Keystone/SDA
Spanish 
English 
German 
French 
Arabic