Pacijentova prava kroz zakonodavne reforme - primer Nemačke

Mujović Zornić, Hajrija and Milenković, Marko (2013) Pacijentova prava kroz zakonodavne reforme - primer Nemačke. Pravni život, 62 (9). pp. 247-263. ISSN 0350-0500

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Abstract

Despite advanced legal system and developed case law concerning institutions and mechanism for protection of patients’ rights in Germany, and after a fruitful debate regarding the need for the codification, the standpoint that it was necessary to adopt a special law on patients’ rights has prevailed. Germany promulgated a Law on Improvement of Patients’ Rights (2013), by inserting detailed new provisions into the German Civil Code (BGB). This Law is a part of wider legislative reform package introduced in German healthcare system over the previous years. Although the law is primarily aimed at physicians, its scope encompasses also other health care professionals involved in provision of healthcare services. The Act creates the medical treatment contract, governing every relationship between a person administering medical treatment and the patient. The adopted law also puts patients’ rights within a wider context, substantially covering somewhat differentiated legal spectrum. Patients’ rights’ were prior to the adoption of the law scattered across the range of legal instruments, causing a challenge for patients without medical and legal knowledge to use guaranteed rights and instruments for protection effectively. The previous regulation by the general rules of civil law has thus become in practice insufficiently clear and uncertain. In such a state of fragmented regulation of guaranteed individual rights there is a considerable degree of discrepancy between normative and practical realms. Regulation of medical malpractice and responsibility for damage to the human body and health also is partially covered by this law. In regulating the area, it is of utmost importance for a law to include governing legal principles, address human dignity, quality and safety of health care, information and autonomy, documentation, and rational and safe organization as well as the right to participate in decisions about treatment and healthcare system. From the perspective of comparative law, the German law now stands among the number of legal acts on patients’ rights of that have been adopted in numerous jurisdictions over the previous period. It can also serve as a model for other legislators, especially taking into account that it rep¬resents the latest examples reflecting general efforts at international and European level to improve protection of rights relating to human health through high standards of medical care and legal protection. It can also be of importance for the Serbian legislators, given the fact that codification of these rights also resulted in adoption of the Law on Patients’ Rights, but with a high level of dissatisfaction among stakeholders.

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