Each of us must have seen an advertisement in which a doctor in a white coat sitting behind a desk advises us to use a medicine that is a miracle cure for our ailments. How it’s possible. since the Pharmaceutical Law Act does not allow medics to perform this type of activity? What is the risk of a doctor who breaks this rule? These issues are regulated by the Code of Medical Ethics.
- “A doctor should not consent to the use of his name and image for commercial purposes,” says the Code of Medical Ethics
- What about doctors who are no longer professionally active? – There are no exceptions or a reduced tariff in the code – explains Dr. Amadeusz Małolepszy, attorney-at-law
- So what can happen to a doctor who decides to participate in an advertisement? Only in the last few years, there have been several serious violations of this prohibition in Poland?
- You can read about what medical products can be advertised and the cat has the right to do so in the first part of the text
- Zêdetir agahdariya heyî dikare li ser malpera Onet-ê were dîtin.
The provisions of KEL are introduced by the attorney working with the Regional Medical Chamber in Łódź, Dr. Amadeusz Małolepszy.
Monika Zieleniewska, MedTvoiLokony: What is the Code of Medical Ethics for?
Dr. Amadeusz Małolepszy: It is a set of ethical principles which should be complied with by representatives of the public trust profession, and which are not always expressed in generally applicable regulations. These are the rules and regulations which the professional self-government of doctors considers to be the highest and which every practicing physician should follow in their professional life. We lawyers also have our own set of ethics, and so do solicitors. Every profession of public trust prides itself on these standards, they are the essence of self-governance.
What is the translation of these principles to the rest of society and patients?
Of course, the subjects to adhere to the Code of Medical Ethics are physicians, but it is formulated in such a way as to organize relationships on three levels; This is: a doctor – local government, a doctor – a doctor and a doctor – a patient, as well as the medical industry and related issues. In these fields, it is possible and even necessary to comply with the principles of a code of ethics. The one that will enforce it is, of course, the medical self-government, which is legally equipped with legal means to do so.
However, each of us has the right, in reliance on these principles, to require from a public trust professional to abide by them. In this context, the Code of Medical Ethics takes on the features of universally binding law. At the same time, I would like to emphasize that it is not a universally applicable law, because regardless of its importance, it is a resolution of a professional self-government body. The standards contained in the code of ethics cannot constitute the legal basis for claims, but do provide the right to require a physician to comply with these standards. If the doctor violates them, the aggrieved party may apply for the initiation of professional liability proceedings.
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What does the code say about advertising?
Article 63 of the Code of Medical Ethics prohibits appearing in advertisements. The regulation states that: “The doctor should not consent to the use of his name and image for commercial purposes.” This is primarily about participation in a TV advertisement, billboard campaign, online campaign in social media. Simplifying wherever you can imagine it and where it comes to profit.
It should also be remembered that advertising may be about a product, but also about your own practice. It happens when we do not say that a product or product is good, or that it is worth betting on a company, but we say that in my office it is fast, cheap, painless and without queues. This aspect does not apply to medicinal products, dietary supplements, medical devices, etc., only self-promotion. And this is also forbidden by the code, as it exceeds the acceptable information about one’s own professional practice.
Does the code provide for exceptions to these rules, e.g. when a physician is not professionally active?
There are no exceptions to the code. Of course, if we are dealing with a social campaign related to giving an image, e.g. coronavirus vaccines are on the top today, then yes, there are no contraindications here, because the social campaign should not suggest what product to use and is by definition non-profit. It is primarily aimed at convincing the public or drawing attention to an important problem. Participation in such a campaign is perfectly legal and desirable, because it is known that a doctor, a profession of public trust, has something good that is associated with knowledge and a sense of care for the common good.
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So no reduced fare?
In my opinion, the prohibition contained in the Code of Medical Ethics is categorical. At the same time, everything that happens around you may have an impact on the assessment of the act in terms of social harmfulness and punishment, if it were to happen. However, there are no exceptions, except for non-profit social campaigns. If the advertiser was motivated by the public good, and a physician, even a retired, professionally inactive doctor, has respect in the community, is an authority and his participation in advertising could exclude unattended items appearing on the market, such arguments may be used as a line of defense in possible proceedings before the district professional liability ombudsman and was then assessed. However, at this point you can ask if you want to act for the public good, the only way to achieve this goal is to participate in an advertising campaign?
I understand that if someone breaks this prohibition, the investigation is initiated by the regional medical chamber?
Yes. The prosecution of professional misconduct was entrusted to district professional liability ombudsmen. At each medical chamber such an ombudsman should be appointed. This is an extremely important feature. The spokesman is appointed by the medical officer during the assembly. He has a very strong legitimacy to conduct proceedings. It is the guardian of ethical principles.
- "Polonî ji nexweşiyek ku êdî ne hewceyî mirinê ye dimirin"
And the district professional liability ombudsman? Who can apply to him?
Anyone really. It can be: a dissatisfied patient, but also a doctor who feels that a colleague is violating the rules of ethics. In the case of doctors, let me make a digression. If a doctor notices bad behavior in a friend or colleague, he or she should first talk to this person directly. Do not involve the local government, but pay attention to certain behaviors categorically. If this does not work, only then can he turn to the local government. However, doctors have two paths. They can take the problem to the professional liability ombudsman, but they can also settle it in a conciliatory manner. Ethics committees are appointed at district medical chambers and at a session of such a committee in the presence of colleagues of doctors, disciplinary discussions may take place, which indicate inappropriate behavior. However, the proceedings before the committee do not have to be associated with consequences in the form of punishment for professional misconduct. On the other hand, the patient should refer to the district professional liability ombudsman. The district ombudsman will investigate the situation and may refuse to initiate or initiate proceedings. If there is a sufficient suspicion of a professional misconduct, charges are presented and then a request for punishment is prepared. This application goes to the district medical court, which decides on the fault. If he finds that the doctor is guilty, for example, of violating an advertising ban, he imposes one of the penalties provided for by law.
What are the penalties at stake?
The catalog of penalties is extensive. Penalties start with an admonition, followed by a reprimand and fines. Of course, there is also a suspension of the right to practice as a doctor, as well as deprivation of the right to practice. The latter penalties are for severe torts; one can imagine it if, for example, an advertisement would promote… torture tools. Most often, however, the former are at stake: a reprimand, reprimand and financial penalty. For participation in advertising, the most common is a financial penalty and is allocated, for example, to charity.
Have you come across cases of a doctor being punished for appearing in an advertisement?
When I worked at the Office of the Regional Professional Liability Officer and the Medical Court in Łódź, such cases happened. I remember that such proceedings took place in other chambers, and the Supreme Ombudsman for Professional Responsibility also dealt with similar cases.
There was a time when a lot of doctors appeared in advertisements for medical products. Many proceedings were pending at that time. Most often they ended in financial penalties. Proceedings in such cases are not complicated by evidence. The most important thing is to determine whether the person appearing in the advertisement is actually a doctor and is entered in the register kept by the regional medical chamber in Poland.
Çima?
Because you can imagine a situation where the director of the advertisement will use the unimaginable name of a doctor, and it will be an actor who has nothing to do with medicine. It may also happen that the fictional character invented by the author of the advertisement turns out to be a doctor registered in one of the rooms. Today it is not difficult to find a doctor entered in the register of the medical chamber. After seeing the advertisement, someone will notify the district ombudsman of the possibility of a professional misconduct.
The Ombudsman, on the other hand, after performing preliminary explanatory actions, may refuse to initiate proceedings arguing that: yes, there is such a person by name and surname, a member of our chamber, but the one who appears in the advertisement is not him, because the spokesman saw the doctor live and he knows that this one did not appear in the advertisement, because the player there is 30 years old, and the member of the chamber is 60. Then the proceedings should not be initiated, because there is no perpetrator of the act. On the other hand, the doctor may take action against the creators of the advertisement for infringement of personal rights.
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