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Constitutional complaint against the publication of a judgment by a disciplinary court unsuccessful

Press Release No. 31/2014 of 02 April 2014

Order of 03 March 2014
1 BvR 1128/13

A disciplinary court decision sanctioning particularly serious professional misconduct may be published in the medical journal "Ärzteblatt" in a non-anonymised version provided that there are a legal basis and a judicial order for this. This was decided by the Third Chamber of the First Senate of the Federal Constitutional Court in a decision published today. The relevant provision of the North Rhine-Westphalian Health Professions Act (Nordrhein-Westfälisches Heilberufsgesetz - HeilBerG NRW) contains a legal basis for the judgment's publication that is in conformity with the Constitution; in the case at hand, the disciplinary courts have also applied it correctly in accordance with constitutional standards.

Facts of the Case and Course of the Proceedings:

The complainant is a physician with his own practice. The Medical Association (Ärztekammer) accused him of having charged private patients with bills that were inconsistent with the statutory schedule of physicians' fees. The Association claimed that the complainant had interpreted the term "session" within the meaning of the statutory schedule to his advantage in such a way that sessions had also taken place on days on which he had not seen the patients.

The disciplinary court for health care professionals found that the complainant had violated his professional duties in all four cases that were brought against him, revoked his right to stand in professional elections, and imposed on him a fine of 25,000 euros. It also ordered that, pursuant to § 60 sec. 3 HeilBerG NRW, the Medical Association had the right to publish the final judgment in the medical journal of its competent section. Pursuant to this provision, the court can "in special cases" decide that "the decision be published". The state appellate disciplinary court for healthcare professionals reduced the fine to 20,000 euros and confirmed the other sanctions. The constitutional complaint challenges these two decisions, and indirectly challenges § 60 HeilBerG NRW.

Essential Considerations of the Chamber:

The challenged decisions do not violate the complainant's fundamental rights.

1. The provisions underlying the disciplinary court's conviction are consistent with Art. 103 sec. 2 of the Basic Law (Grundgesetz - GG); they are sufficiently precise. One cannot conclude from the fact that there are different views on the relevant criterion of "session" that the provisions on which the disciplinary sanctions are based are not sufficiently precise to justify a conviction by a disciplinary court. Given the everyday meaning of the term, it was sufficiently evident for the complainant that his dissenting view contained a risk of sanctions.

2. Moreover, the challenged decisions are consistent with the general right of personality (Art. 2 sec. 1 in conjunction with Art. 1 sec. 1 GG).

a) A provision which allows for interferences with the general right of personality is only permissible if it is suitable and necessary to protect an important common good, and if its protective purpose is sufficiently weighty so as to justify the extent of the respective interference with the right of personality.

§ 60 sec. 3 HeilBerG NRW meets these requirements; in particular, the provision is proportionate. It is directed at health care professionals who are met with a special trust that is worthy of protection. Disciplinary law can impose appropriate sanctions for misconduct which shakes, or is likely to shake, this trust.

Pursuant to the obvious understanding of the challenged decisions, which is at any rate constitutionally justifiable, § 60 sec. 3 HeilBerG NRW provides that a final conviction by a disciplinary court is published without being rendered anonymous. Such a measure is justified by a legitimate interest to inform the general public, in particular those who are insured, as well as the members of the Medical Associations, who, knowing about such misconduct, can adapt their behaviour. In addition to this general preventive effect, the publication also further sanctions a significant individual misconduct which entails the risk of higher costs for everybody who is insured.

The permission to publish a non-anonymised disciplinary court judgment does not meet with objections under constitutional law if it only concerns individual, exceptional cases. Moreover, the principle of proportionality is respected if it is published only once, and in a medium that serves the same profession.

b) There are also no objections under constitutional law against the application of the provision on a case-by-case basis. The application of this sanction requires a balancing of all relevant interests in the individual case, which the disciplinary courts engaged in. There are in particular no objections under constitutional law against the fact that the disciplinary courts considered the professional misconduct with which the complainant was charged to be particularly serious, because his systematic approach, aiming at charging fees in a way that violates the statutory schedule, is likely to cause high damage.

3. From the fundamental right to freedom of occupation (Art. 12 sec. 1 GG), which the complainant also invokes, follows no further protection for him in this case.