The central characteristic of the Austrian healthcare system is that responsibilities are split between several different bodies, and their tasks are regulated in several laws and regulations. This makes the topic of healthcare in Austria highly complex. Another peculiarity is that there are many social security funds that are connected under one umbrella organisation. It is also noteworthy that the relations between the public health insurance institutions and the providers of healthcare services are regulated by civil law contracts.
II THE HEALTHCARE ECONOMY
Access to healthcare services in Austria is independent of factors such as nationality and age; rather, it is a matter of the type of health insurance in place.
Public healthcare services (i.e., services available to persons who have statutory health insurance) include:2
- a medical, therapeutic and psychologists’ services:
• consultation with doctors, who have a contractual relationship with a public health insurance institution (contract doctors);
• consultation with non-contract doctors;3
• consultation with healthcare centres of the respective health insurance institution; and
• if prescribed by a doctor, treatment by psychotherapists, speech therapists, occupational therapists or masseurs, and, if prescribed or ordered by a doctor or psychotherapist, a diagnosis by a clinical psychologist;
- remedies, which include the necessary medicinal products and other means to cure or alleviate the illness or to ensure the success of the treatment;
- medical aids, such as glasses and orthopaedic insoles;
- hospital care and medical treatment at home;4
- dental services;5
- as an optional service, which the health insurance fund may deny for financial reasons, stays at sanatoriums;6
- maternity services;7 and
- preventive measures, such as yearly medical check-ups, yearly medical examinations of adolescents and certain vaccinations.8
Public health insurance institutions do not pay for alternative health therapies, lifestyle drugs or dietary supplements.
Private healthcare services, by contrast, are not limited in any way. For instance, they comprise, in addition, consultation with private doctors (i.e., doctors who operate a private practice in parallel to being a contract doctor or doctors who do not invoice their services in compliance with the requirements of the public health insurance system).
ii The role of health insurance
For the vast majority of the Austrian population, health insurance is mandatory pursuant to statutory law. This applies to:
- employees and apprentices;9
- self-employed persons in the industry sector;10
- public servants;11
- persons working in the agriculture and forestry sector;12 and
- persons drawing a pension pursuant to the ASVG.13
Family members of the main insured person who do not have health insurance of their own are generally included in the main insured person’s insurance.14 Likewise, statutory health insurance is generally provided for unemployed persons.15
The Austrian public health insurance institutions are nine regional health insurance funds (i.e., one in each federal province), currently five company health insurance funds and four professional social insurance institutions.
All public health insurance institutions are combined in the Main Association of the Austrian Social Insurance Institutions.16
The fees due to the health insurance institutions are, for example, for employees 7.65 per cent of their salary and for apprentices 3.35 per cent of their salary, which are paid in virtually equal parts by the employee or apprentice and the employer.17 The fees to be paid for health insurance under the Industrial Social Insurance Act (GSVG) are 7.65 per cent of the insured person’s income.18
As regards the remaining parts of the Austrian population (i.e., persons not covered by mandatory statutory health insurance), various professional associations have their own health insurance regimes, which provide for voluntary participation in the statutory health insurance or choosing health insurance provided by private insurers.
iii Funding and payment for specific services
The public healthcare system
With regard to the costs of consulting a doctor, the services provided by a contract doctor are paid for directly by the appropriate health insurance fund; the same applies to services provided by the specialists and therapists mentioned in subsection (i) above, based on a prescription or order.19
If a patient consults a non-contract doctor, the insured person has to pay for the doctor’s services first and, subject to certain restrictions, can ask for a refund by the public health insurance fund of 80 per cent of the costs that the health insurance fund would have had to pay to a contract doctor for the same services.20 This controversial 80 per cent rule has been confirmed by the constitutional court of Austria.21
As regards medicinal products and other remedies prescribed by contract doctors, patients do not have to pay for medicinal products as such, prescribed to them by contract doctors, provided that the medicinal products can be prescribed pursuant to the Reimbursement Code. Instead, the insured person, in general, merely has to pay a prescription fee, which is currently €5.85 per remedy; however, payment of these fees is capped at 2 per cent of the insured person’s yearly net income.22 Exemptions from these fees apply in relation to contagious diseases that require notification, as well as to particular socially vulnerable persons.23 The same regulations may apply to certain non-contract doctors subject to specific conditions.24
As regards medical aids, reimbursement relating to hospital care is regulated separately by the various hospital carriers. In relation to services by established doctors, the Competence Centre for Medical Aids (CC-HBHI)25 decides on reimbursement and determines the prices in respect of certain products26 for most social insurance carriers. In general, 10 per cent of the costs of medical aids prescribed to patients have to be borne by the insured person.27
As regards hospital care, most hospitals in Austria, both public and private, are financed via the Procedure and Diagnosis-Related Groups (PDRG) system, (LKF-System), namely, a DRG system adapted to the Austrian framework, namely including procedures as well as diagnoses.28 In addition, patients have to pay moderate fees for inpatient and outpatient hospital care.29
The costs of services provided by private doctors are not refunded (not even partly) by the public health insurance institutions. In addition, the price of such services is not bound to a lower or an upper limit. Such services can only be paid for by private insurance companies on the basis of individual private insurance contracts.
III PRIMARY / FAMILY MEDICINE, HOSPITALS AND SOCIAL CARE
i Legal frameworks and the care pathways
According to the latest available study, the healthcare access and quality index of Austria, based on mortality from causes amenable to personal healthcare from 1990 to 2015, is at 88, ranking at number 14 globally.30 With over 270 hospitals and another approximately 900 outpatient clinics, Austria offers a comprehensive network of medical treatment.31
The Hospitals and Sanatoriums Act (KAKuG) regulates the scope of practice of such institutions. It states in Sections 1 to 2a that hospitals shall provide first diagnoses and further surveillance by medical checks and operations, services for prophylaxis, healing, maternities and organ transplants. The same is applicable for outpatient clinics, with the exemption of only carrying out small surgeries.32
However, for primary healthcare, most Austrians prefer a visit to their family doctor first. Unlike in many other European jurisdictions, Austria offers direct access to medical consultants. The legal framework is the Physicians Act (ÄrzteG). General practitioners may, among other medical services, prescribe medicine, therapies or further medical examinations, or carry out regular checks. Furthermore, social care is mainly regulated in the Healthcare and Nursing Act (GuKG).
All of the above-mentioned treatments require an individual medical treatment contract between the patient and either the institution providing the care, or the responsible or chief physician. This is the foundation of the physician–patient relationship, which is influenced by various legal regulations and provides the basis of numerous rights and obligations for the parties, such as the obligation to carry out therapies on the practitioner’s side as well as paying the medical fee on the patient’s side. The treatment contract is qualified as a free service contract according to the Austrian prevailing doctrine as well as judicature. It is a mixed contract combining elements of a service and a work contract. This differentiation is not only important for labour or social law-related issues but also for the limitation of liabilities.33
On 28 June 2017, a new law regulating and improving primary healthcare and its institutions was adopted in Austria and entered into force on 3 August 2017.34 The aim of the Primary Healthcare Act (PrimVG) is to offer better and easier access to family healthcare with more extensive medical services and longer opening hours. So far, three primary healthcare institutions have been established in Austria. While those first institutions are still facing difficulties in the initial phase, there are plans to establish 75 primary healthcare institutions all over Austria by 2021.35 These institutions shall be in the form of group practices or independent outpatient clinics staffed with a core team of general practitioners and nurses. Focusing on the needs of citizens in certain areas, additional health and social care professionals shall be added to the teams (i.e., psychologists and midwives).
Another purpose of this reform was to relieve hospitals and their outpatient clinics as well as to up-value the work of family doctors in the countryside. Most students do not favour a career as ‘just’ a general practitioner, and by 2025 more than 50 per cent of the general practitioners in Austria will be retired.36 With the new institutions, the access to healthcare outside of cities and bigger villages shall nevertheless be maintained. Moreover, the merging of various medical areas in these institutions, and thus extending the medical work field of former family doctors, shall make their profession more attractive again.
ii Electronic health records37
In 2012, a system for electronic health records (EHR) was introduced in Austria, known as ‘ELGA’. It is an information system facilitating certain healthcare providers looking up medical records, independent of location and time, as a basis for their own treatment and is regulated in Chapter IV of the Health Telematics Act (GTelG 2012).
According to Section 2(10) GTelG 2012, healthcare providers under this law include members of the medical and dental professions, pharmacies, hospitals and healthcare institutions. In general, the participants are all natural persons insured in Austria and need not hold Austrian citizenship. It is, however, necessary that these natural persons are registered with the Patient Index and have not opted out of ELGA. An objection can only be made in written form at the ‘opt-out offices’.
Because of the personal data that is saved in ELGA, the main goal of the statutory regulations is to foster and extend data security when using EHRs in direct or indirect communication by setting up uniform federal minimum standards. The data is also classified as ‘sensitive data’ according to the Data Protection Act (DSG 2000) and is therefore also protected under this law.
Only providers that have a valid treatment contract with the patient may look up the data, after authorising their own identity, up to 28 days after signing. In general, the data and protocols of these encrypted transactions are stored decentralised for a maximum of 10 years and thereafter shall be deleted. If there is a suspicion of data abuse, one can contact the ELGA ombudsman’s office for support. The punishment is imprisonment for up to six months or a financial penalty of tens of thousands of euros. Last but not least, it has to be stressed that medical confidentiality also applies to the knowledge gained through EHR.
As of 2018, in addition to medical records, prescribed medicine shall also be saved under ELGA: ‘eMedicine’ is a new tool in the ELGA system that saves prescribed and, in a pharmacy, purchased medication in an online list for one year. Healthcare providers as well as pharmacies and the patients themselves have secured access to this list. As the main goal of eMedicine is to detect potential interactions between various drugs and treatments, healthcare providers are legally obliged to fill in the prescribed medication in the system.38
As a result, already over 160 healthcare providers in Austria successfully use ELGA and more than 12 million electronic medical records are available in the system as per the end of January 2018. The eMedicine tool shall be implemented in all federal states in Austria by the end of 2018. Since its implementation, only 266,000 persons insured in Austria opted out of ELGA.39
IV THE LICENSING OF HEALTHCARE PROVIDERS AND PROFESSIONALS
The key licensing bodies in relation to hospitals and independent outpatient clinics, irrespective of whether they are being operated as public or private institutions, are the provincial governments. As regards sanatoriums, the key licensing bodies are the regional administrative authorities.
Public and private hospitals, as well as independent outpatient clinics, need a licence issued by the respective provincial government for their establishment and operation.40 Sanatoriums need a licence for their operation only, issued by the respective regional administrative authority.41
Licensing of doctors and dentists is the task of their professional bodies (i.e., the Medical Chamber and the Dentists’ Chamber). Apart from certifying the personal and academic qualification of doctors and dentists, the Medical and the Dentists’ Chambers are, inter alia, in charge of registering doctors and dentists in the Austrian List of Doctors or in the List of Dentists, respectively. Such registrations are mandatory requirements for working as an independent doctor or dentist in Austria.42 As to prohibiting a doctor’s or dentist’s medical practice, the competent body is the governor of the respective federal province.43
As regards nurses, pursuant to a law adopted in 2016, the Act on the Registry of Healthcare Professions, persons who are licensed to work as nurses and who provide nursing services on 1 July 2018 have to apply for and obtain their registration in this Registry by 30 June 2019 at the latest. As of 1 July 2018, persons who qualify as a nurse and who wish to provide nursing services in Austria need to apply for their registration in this registry before providing nursing services. The registering authorities are the Federal Chamber of Labour with respect to employed nurses, and Gesundheit Österreich GmbH with respect to independent nurses.44
The responsibility for licensing with respect to pharmacists is divided between the locally competent district administrations and the Chamber of Pharmacists.45 The district administrations are, inter alia, in charge of administering applications for operating new public pharmacies, whereas the Chamber of Pharmacists handles applications for operating existing public pharmacies.46
ii Institutional healthcare providers
Licences for operating a hospital, independent outpatient clinic or sanatorium comprise all services carried out in these institutions. More specific regulations on the prerequisites for obtaining a licence for establishing or operating such institutions as well as regulations on closures of such institutions operating without fulfilling the requirements for obtaining a licence to operate are in place on the provincial level rather than on the federal level.
As regards licences for establishing hospitals, apart from personal and qualitative aspects, in general, the provincial governments to a large extent focus on the prerequisite of a need for this new hospital or, with respect to independent outpatient clinics, whether the new clinic can bring about a substantial improvement of the healthcare provision in the catchment area.47
Licences for establishing or operating hospitals are to be modified or revoked if any of the prerequisites for obtaining the licence are not or no longer fulfilled. In addition, licences for operating hospitals can be revoked if any other serious defects are not remedied within a set period, despite a request to do so.48
In 2016, the Austrian Administrative Court had to decide on an appeal lodged by a company whose application for a pre-filing declaration of an existing need for a public rehabilitation clinic for children in a town in the province of Salzburg was dismissed by the provincial government of Salzburg. The government had argued that there was no need for this clinic because a different company had previously applied for and obtained a similar pre-filing declaration of an existing need for a private rehabilitation clinic for children close to the town in which the applicant wished to establish its public clinic. Furthermore, the other company had, on the basis of the declaration granted, applied for a licence to establish the clinic, but it had not yet begun to set it up. The Austrian Administrative Court granted the appeal against the dismissal of the declaration for two reasons. First, a private rehabilitation clinic for children could not be considered hindering the need for a public rehabilitation clinic for children. Second, a licence for establishing a (private or public) clinic could not, when examining the need for a new clinic, be treated like the clinic itself; that is, a clinic that is merely planned but has not yet been established cannot remove the need for a new clinic.49
iii Healthcare professionals
Doctors and dentists
The ÄrzteG contains the requirements for licensing of doctors (i.e., the general personal and respective educational requirements). In addition, as mentioned above, in order to work as an independent doctor in Austria, any doctor needs to be registered in the Austrian List of Doctors. If the Medical Chamber finds that the conditions of being admitted to the medical profession in Austria are not met, it has to render an administrative decision stating this, thereby refusing to register the doctor in the Austrian List of Doctors.50
Several provisions of the ÄrzteG concern setting up and operating a doctor’s medical practice. For instance, starting to work as a self-employed doctor requires evidence of a valid insurance contract with a licensed Austrian insurer, covering patients’ claims for damages of at least €2 million per insured event, and this insurance has to be maintained during the entire duration of the doctor’s medical practice.51
Doctors may, subject to precautionary measures and on a case-by-case basis only, delegate certain medical activities to laypersons (e.g., relatives of the patient or personal care assistants).52
If a doctor is no longer apt or allowed to pursue his or her profession (e.g., as a result of a disciplinary offence), the Medical Chamber has to declare via an administrative decision that the doctor must not pursue the medical profession any longer and has to arrange for the doctor being deleted from the Austrian List of Doctors; the doctor has the right to appeal such administrative decisions in an administrative court.53
In cases of imminent danger and if public well-being so requires, the governor of a federal province has to order a preliminary prohibition of a doctor’s further medical practice if a judicial procedure on: imposing legal guardianship on the doctor; or serious misconduct in the course of his or her medical practice, which triggers criminal or administrative fines, has been instigated. Such prohibitions are valid until the final termination of the respective judicial procedures.54
Practising as a doctor without being licensed to do so is an administrative offence and sanctioned by a fine of up to €3,630.55
The provisions in the Dentists Act (ZÄG) regarding dentists are rather similar to the ones relating to doctors.
The requirements for working as a nurse include personal suitability and trustworthiness, proof of qualification and a command of German.56 As regards the mandatory registration of nurses in the Registry of Healthcare Professions mentioned above,57 the competent registering authority has to deny registration via an administrative decision if the applicant does not fulfil all conditions required; the applicant may appeal this decision in an administrative court.58
A registration in the Registry of Healthcare Professions is valid for five years and may be renewed upon application.59 If the competent district administration finds that a nurse does not fulfil, or no longer fulfils, the prerequisites for lawfully pursuing this profession (e.g., proof of qualification and trustworthiness), it has to withdraw the nurse’s licence60 and remove the nurse from the Registry of Healthcare Professions by Gesundheit Österreich GmbH.61
Working as a nurse without being entitled to do so is sanctioned as an administrative offence by a fine of up to €3,600. The same offence and sanction are imposed on anybody who engages a person not entitled to work as a nurse to pursue this profession. In both cases, an attempt to commit these offences is also punishable.62
In general, a licence for operating a (new or existing) public pharmacy in Austria requires the pharmacist’s personal suitability, which includes, inter alia, reliability, an adequate health status proved by a medical officer, professional qualification, a sufficient command of German and payment of a fee.63 As regards pharmacies to be newly established, the licence also requires that a doctor’s permanent practice is in the community where the pharmacy is supposed to have its seat, and that there is a need for a new public pharmacy.64 Persons who already have a licence for operating a pharmacy in Austria, in the EEA or in Switzerland may not obtain another licence.65 The owner of a public pharmacy is obliged to operate it continuously.66
The insurance obligation of pharmacists is virtually identical to the one applicable to doctors.67
A pharmacist’s licence has to be withdrawn if the prerequisites for granting it are not or are no longer fulfilled; a pharmacist’s licence can be withdrawn if the pharmacy has not been opened within five years from the effective date of the licence or if the operation of the pharmacy has stopped and not been resumed within six months.68 A public pharmacy that is operated without a licence is to be closed immediately by the authorities, and no regular remedy is available against such administrative decision.69 Infringements of the provisions of the Pharmacy Act are sanctioned as administrative offences and trigger fines of up to €4,360.70
For all professionals mentioned above, Austria has implemented the provisions of EU directive 2005/36/EC. That is to say, in respect of, for example, doctors, professional qualifications from other EU or EEA Member States or from Switzerland will be recognised automatically, unless the qualifications do not comply with directive 2005/36/EC. In the latter case, if the Austrian Medical Chamber does not consider the candidate’s qualification to be sufficient because of substantial differences in the professional training, which differences cannot be counterbalanced by the professional experience gained, the candidate will need to take an aptitude test. Candidates holding qualifications from third countries need to have their degrees recognised (‘nostrification’) by an Austrian university, in other words they need to pass one or more additional exams, unless (1) their diplomas have been recognised as equivalent in any EEA country or Switzerland and (2) the candidates have worked there legally in this profession for three years.71 In addition, sufficient command of German is a precondition for admission in any case.
V NEGLIGENCE LIABILITY
In Austria, both public and private healthcare providers are subject to the same provisions on medical liability. The general rules of the Austrian Civil Code and the Austrian Criminal Code determine the civil and criminal liability of healthcare professionals, respectively. Whereas criminal proceedings according to the relevant provision in the Austrian Criminal Code dealing with unauthorised medical treatment (Section 110 of the Austrian Criminal Code) are rather seldom, civil cases dealing with the improper performance of physicians or the healthcare institution have been continuously increasing in recent years. Consequently, Austrian case law established by the Supreme Court covering civil cases related to medical malpractice is very advanced.
The majority of patients are treated based on contractual relationships with the physician or surgery, the hospital or the healthcare institution. As a result, most civil claims are based on a damage claim for the violation of contractual provisions and on Austrian tort law. Note, the Austrian Civil Code only provides for one basis for a tort law claim, which is perhaps most closely related to the tort of negligence.
In practice, a damage claim for medical malpractice usually includes a medical treatment that was not performed lege artis or a poor pre-operation discussion causing a lack of the patient’s informed consent. Further, court cases dealing with medical malpractice in Austria very often involve a medical court expert for questions raised in relation to the causality of a non-lege artis performed medical treatment or for assessing the amount of damages in case the claim is granted by the court.
When it comes to remedies, the harmed patient can claim for pecuniary losses, such as for medical treatment, medication, nursing and rehabilitation, and for loss of income. Apart from these expenses, inured patients are further entitled to compensation for pain and suffering, which are usually granted in the form of a lump sum. Generally speaking, Austrian court orders on damage claims for non-pecuniary loss as a result of medical malpractice do not reach extensive amounts. The maximum compensation is currently around €370,000. In any case, most cases in Austria are settled out of court.
VI OWNERSHIP OF HEALTHCARE BUSINESSES
There are not many rules and laws dealing with the ownership of healthcare businesses in Austria. The main Act addressing this issue is the KAKuG. It states that in general any natural or legal person can be the owner of a healthcare business. At present the following legal persons are owners of healthcare businesses in Austria: the federal government, the governments of the federal states and provinces in Austria, local authorities, public enterprises, social insurance agencies, clerical entities, clubs and commercial enterprises. From this it can be seen that ownership is not limited to bodies of the public sector, but – theoretically – open to anyone.72
At this point, an important distinction may be mentioned briefly before continuing with the explanation of the few exemptions to the general rule. In Austria, the differentiation between public and private healthcare businesses does not depend on the form of ownership, but, rather, meeting certain requirements set out in the KAKuG in order to be qualified and offered the status as a public healthcare business. The requirements that need to be met are: (1) being a non-profit organisation; (2) the assurance of continued existence and appropriate business operation; (3) ownership by a legal person; (4) the fulfilment of certain obligations under the KAKuG; and (5) meeting the requirements of the plan set out by the respective federal state of Austria. However, there is no right to be granted the status of a public hospital, even if all requirements are met.73
The significance of this distinction might have been recognised already; public entities may only be owned by legal persons. Therefore, the simple general rule of any person, no matter if natural or legal, to be the owner only applies to private healthcare businesses. Moreover, because of another requirement that needs to be fulfilled, only owners of private healthcare businesses are free to decide whether they want to operate as a non-profit or as a profit-oriented business.
Despite the division into private and public bodies, there is one other exemption to the general rule, based on the type of healthcare business. The ownership of group practices is not regulated under the KAKuG, but in Section 52a ÄrzteG. Therein it is set forth that these institutions may only be owned by persons who collaborate in the form of a general partnership or who have established a limited liability company for this purpose. These are all restrictions to ownership of healthcare businesses in Austria.74
VII COMMISSIONING AND PROCUREMENT
The relations between the social security funds represented by the Main Association of the Austrian Social Insurance Institutions and the providers of healthcare services, including pharmacies and most hospitals, as well as primary healthcare institutions,75 are governed by civil law contracts.76 That is to say, providers of healthcare services in the public sector, in general, need to conclude a contract with the Main Association of the Austrian Social Service Institutions. Doctors, dentists and pharmacists are to be represented by their professional associations in the general contracts, and doctors and dentists conclude special contracts with the respective health insurance institutions, pursuant to the provisions of the general contracts.77
The above provisions do not apply to providers of private healthcare services who, by contrast, only need to obtain their respective licences and may then enter into healthcare service contracts with the patients directly. It is rather common, though, for private hospitals to have concluded ‘direct settlement agreements’ with several social insurance institutions and private insurers regulating payment of the services rendered to the patients directly by the respective insurers.
VIII MARKETING AND PROMOTION OF SERVICES
The owners of hospitals must not, by themselves or via other individual or legal persons, provide unobjective or false information in connection with the operation of a hospital. This general prohibition78 is substantiated further by the respective implementing provisions in the nine federal provinces.
Doctors must not, in connection with their professional practice, provide any information that is unobjective, is false or affects the reputation of their profession.79 In addition, doctors may not promise, grant, accept or have promised to themselves any remuneration for assigning patients to themselves or to other doctors.80 The statutory regulations on advertising and promotion of the services of dentists are almost identical to those relating to doctors.81 These prohibitions applicable to doctors and dentists are extended to any other individual and legal persons as well (i.e., any other third party must comply with these prohibitions too).82
These statutory provisions on marketing and promotion of services of doctors and dentists are complemented and substantiated by the doctors’ professional rules, the regulation of the Austrian Medical Chamber on the manner and types of admissible information in public.83 Likewise, the Dentists Chamber’s advertising guidelines for dentists pursuant to Section 35(5) ZÄG contain more specific regulations on inadmissible advertising and promotion practices.84
For mentioning just a few of these regulations, both the professional rules of doctors and dentists prohibit, inter alia, advertising medicinal products, medical aids or other medical products, as well as the manufacturers or suppliers of such products.85 In addition, both sets of rules oblige doctors and dentists to reasonably prevent third parties, in particular the media, from publishing any inadmissible information or advertisements.86
Doctors and dentists, as well as any third parties, who contravene the above-mentioned provisions on advertising and promotion are subject to disciplinary measures or administrative fines, as the case may be.87
Independent nurses may not advertise their services in a way that is detrimental to the reputation of their profession; in particular, they have to abstain from any comparative, discriminatory or unobjective advertising.88
The Austrian courts are rather strict as regards the restrictions on advertising regarding doctors or dentists, and hospitals. We would like to briefly outline two cases to illustrate this.
The Austrian Supreme Court (OGH) recently ruled that flyers distributed in Upper Austria regarding an ‘information event’ taking place in an inn, and the information event itself, advertising bus trips to a dental clinic in Hungary, at which at the same time a famous Hungarian spa situated close to the dental clinic was advertised as well, were in breach of Section 13 KAKuG and the corresponding provincial provision in connection with Section 1 of the Austrian Act on Unfair Competition (UWG) because the combination of advertising both the dental clinic and the spa was considered unobjective.89 Interestingly, the Supreme Court held that the tour operator itself had breached the advertising prohibitions of Section 13 KAKuG and the corresponding provincial provision, although the addressees of these provisions are the owners of hospitals only.
In 2015, the Austrian Administrative Court had to rule in a disciplinary proceedings case concerning two surgeons who had placed advertisements for their newly opened medical practice in a magazine displayed in waiting rooms of doctors.90 Because the medical practice was supposed to focus on sports accidents, the advertisements showed pictures of the two surgeons in their medical clothing and with their medical equipment, and at the same time wearing sport equipment such as ski goggles, a Tyrolean hat, a hiking rucksack and ski poles. Because the advertisements did not contain any factual information on the two surgeons’ practice, apart from the terms ‘Sports accidents, foot and hand surgery, vein treatment, MRI – X-ray, ultrasound’ at the side of the advertisements, the Court held that the advertisements were not informative, but gimmicky, and therefore affected the reputation of the medical profession. The Court thus upheld the disciplinary fines imposed on the two surgeons by the Austrian Medical Chamber.
IX FUTURE OUTLOOK AND NEW OPPORTUNITIES
i Dr Google and mHealth91
In light of the digital age, a whole new way of receiving information regarding one’s health has become possible. An increasing number of people are using search portals such as Google to receive a first diagnosis. At first sight, this might seem to be a negative development because of possible false information or misinterpretations. However, this can also create an ‘informed patient’. Patients can now look up symptoms before a medical appointment, make medical appointments according to this information and afterwards look up any technical vocabulary used by the doctor, resulting in a faster, better and clearer treatment. Having said that, for this to have an effect it is necessary for the Austrian government to provide websites and portals with reliable information placed by professionals.
An even more promising future trend is mobile health. The trend of ‘mHealth’, as referred to by the WHO, has been revolutionising ways of monitoring one’s health, sport activity, nutrition and medication. This not only benefits the user, but is also linked to a very profitable market and broad data collection.
As there are over 100,000 mHealth applications on the market, with an upward trend, collecting personal data about one’s daily activities has become an easy task. It is evident that there needs to be comprehensive data protection regulations to protect users from data protection infringements. It is just a matter of time until the Austrian lawmakers – probably initiated by European regulations – have to act in order to keep this personal data safe. However, the broad health data collection also creates great opportunities concerning epidemiological research.
ii Compulsory vaccination92
Another topic that will be the subject of many discussions in the upcoming years is the introduction of compulsory vaccinations. As a result of the trend of receiving medical advice online, the spreading of conspiracies and the advertising of dreadful side effects connected to vaccinations has reached a new level. It can already be seen that fewer and fewer people, especially children, are being vaccinated, as a result of belief in these anti-scientific theories.
In Austria there is no obligation to be vaccinated. But merely providing optional clarification and further information to citizens is no legitimate way for the state to stop the decrease. The widespread growth of dangerous infections such as measles as a result of this is a problem that must be taken seriously. Based on the latest reports of the OECD, Austria shows the second-highest rate in registered measles cases in Europe.
There is no general legal barrier preventing the introduction of compulsory vaccination in Austria. The state only has to provide for a proportionate and infection-differentiating statutory vaccination obligation, also taking into account that interference in a person’s right to a private life can be justified by the right to protect health in case of a potential risk – without having to wait for a real outbreak.93
As the state is obliged to ensure and secure the well-being of its citizens and their health, a first step could already be an obligatory medical consultation regarding vaccinations or connecting vaccinations to social welfare benefits.
iii Automatic organ donors94
As post-mortem organ donations are still of ultimate concern, it is necessary to address this topic. In general, every state, even within the European Union, may set out the rules regarding post mortem donations independently. Over the years, two different main schemes have evolved: the dissent solution and the consent solution.
Since 2012, the dissent solution has been codified in the Austrian Transplants Act. It sets forth that in any case of a cerebral death of a person within the territory of Austria, the organs of this person may be taken if there is no explicit dissent to the donation of organs. The dissent must be expressed explicitly by the person in a pre-prepared form. To ensure the form’s documentation, it should be filed in the dissent registry. All hospitals and doctors are obliged to look into the registry before removing organs.
Because of the small number of drafted dissenting statements, this solution leads to many organ donations. Thus, in the international context, Austria is at the top of conducted organ transplants, with 91.6 transplants per million inhabitants in 2015, whereas Germany, applying the consent solution, only recorded 46.4 transplants per million inhabitants.95 As a result, the Austrian regulation shall be taken as a role model for states that have not yet implemented the dissent solution.
Although the Austrian healthcare system is among the best-developed systems worldwide, there are still several points of criticism pertaining to it. Among these, the split responsibilities between several different bodies and the abundance of laws and regulations regulating their tasks and duties, as well as the large number of health insurance institutions, are most prominent, and periodically evoke calls for amendment and some sort of consolidation. In response to this, the federal government currently plans a reform of the social insurance system. Although there is no draft law yet to date, it has become known that the amendment aims at reducing the individual public health insurance institutions from the current 18, combined in the Main Association of the Austrian Social Insurance Institutions, to only four. Unlike the present situation, the benefits granted by these respective new health insurance institutions shall be uniform throughout Austria. The government expects considerable savings from this reform. Details are yet to be determined.
1 Valerie Hohenberg is a partner and Maren Jergolla-Wagner is a senior associate at Wolf Theiss Rechtsanwälte GmbH & Co KG.
2 E.g., Sections 135 ff of the General Social Insurance Act (ASVG) re items (a) to (c).
3 This is not free of charge for patients in the public health system; please see below, subsection iii.
4 E.g., Sections 144 to 151 ASVG.
5 E.g., Sections 153 and 153a ASVG.
6 E.g., Section 155 ASVG.
7 E.g., Sections 157 to 168 ASVG.
8 E.g., Sections 132a to 132c ASVG.
9 Sections 4 ff ASVG.
10 Sections 2 ff GSVG.
11 Sections 1 ff of the Public Servants’ Health and Accident Insurance Act (B-KUVG).
12 Sections 2 ff of the Social Insurance Act for Farmers (BSVG).
13 Section 8(1) No. 1a ASVG.
14 E.g., Section 123 ASVG.
15 Article II, Section 6 of the Unemployment Insurance Act (AlVG).
16 Section 31(1) ASVG.
17 Section 51 ASVG.
18 Section 27 GSVG.
19 Section 135 ASVG.
20 Section 131(1) ASVG.
21 VfGH G 24/98.
22 E.g., Section 136(3) and (6) and Section 31(5) No. 16 ASVG.
23 E.g., Section 136(4) and (5) ASVG.
24 Inter alia, a confirmation by the respective public health insurance institution, cf., e.g., Section 350 ASVG.
25 Part of the Social Insurance Institution for Railway and Mining (VAEB).
26 Bandages, orthoses, prostheses, orthopaedic insoles and shoes as well as stoma, incontinence, wound care and diabetes products.
27 Section 137(2) ASVG.
28 Section 148(3a) ASVG.
29 Section 144(6) and Section 31(5a) ASVG and Sections 26 and 27a KAKuG.
30 The Lancet, Volume 390, No. 10091, p. 231, 238, 15 July 2017.
32 Füszl in Aigner/Kletečka/Kletečka-Pulker/Memmer, Handbuch Medizinrecht für die Praxis III26: IV.1 Krankenanstaltenrecht, p. 4, 44.
33 Jesser-Huß in Resch/Wallner, Handbuch Medizinrecht: Zivilrechtliche Fragen des Arzt-Patienten-Verhältnisses, p. 82–90.
34 BGBl. I No. 131/2017 – PrimVG.
40 Section 3 and Section 3a KAKuG.
41 Section 42b KAKuG.
42 Sections 4 and 27 ÄrzteG and Sections 6, 11 and 12 ZÄG.
43 Section 62 ÄrzteG and Section 46 ZÄG.
44 Health Professionals Register.
45 E.g., Sections 44 and 46 of the Pharmacy Act.
46 Sections 46 and 51 of the Pharmacy Act.
47 Sections 3 and 3a KAKuG.
48 Section 12 KAKuG.
49 VwGH, 11 October 2016, file No. Ro 2014/11/0056.
50 Section 27(10) ÄrzteG. Such decisions can be appealed by the doctor in an administrative court.
51 Section 52d ÄrzteG.
52 Sections 50a and 50b ÄrzteG.
53 Section 59 ÄrzteG.
54 Section 62(1) ÄrzteG.
55 Section 199(1) ÄrzteG.
56 Section 27 GuKG.
57 See Section IV.i above regarding the effective dates of the GBRG.
58 Section 16 GBRG.
59 Section 18 GBRG.
60 Section 40(1) GuKG.
61 Section 25(1) GBRG.
62 Section 105(1) No. 1 and No. 2 and Section 105(2) GuKG.
63 Sections 3 to 3b and Section 11 Pharmacy Act.
64 Sections 9 and 10 Pharmacy Act.
65 Section 2 Pharmacy Act.
66 Section 13 Pharmacy Act.
67 See above, (a); Section 4a Pharmacy Act.
68 Section 19 Pharmacy Act.
69 Section 19a Pharmacy Act.
70 Section 41 Pharmacy Act.
71 Sections 5, 5a, 27 and 28 ÄrzteG.
72 Füszl in Aigner/Kletečka/Kletečka-Pulker/Memmer, Handbuch Medizinrecht für die Praxis III26: IV.1 Krankenanstaltenrecht, p. 10a.
73 Stärker in Resch/Wallner, Handbuch Medizinrecht: Krankenanstaltenrecht, p. 359-360; Bundesministerium für Gesundheit und Frauen, Klassifikation der österreichischen Krankenanstalten, p. 3, https://www.bmgf.gv.at/home/Gesundheit/Krankenanstalten/Krankenanstalten_und_selbststaendige_Ambulatorien_in_Oesterreich/Krankenanstalten_in_Oesterreich, 11 April 2018.
74 Schneider in Aigner/Kletečka/Kletečka-Pulker/Memmer, Handbuch Medizinrecht für die Praxis III26: IV.2 Zusammenarbeit, Reformgestaltung, Gruppenpraxen, p. 66.
75 See Section III above.
76 Sections 338 ff ASVG.
77 Sections 341, 342 and 343 ASVG.
78 Section 13(1) KAKuG.
79 Section 53(1) ÄrzteG.
80 Section 53(2) ÄrzteG.
81 Sections 35(2) and (3) ZÄG.
82 Section 53(3) ÄrzteG and Section 35(4) ZÄG.
83 Regulation ‘Arzt und Öffentlichkeit 2014’ of 27 June 2014, as amended on 15 December 2015.
84 ‘Werberichtlinien gemäß § 35 Abs. 5 Zahnärztegesetz’, in their latest version of 12 June 2015.
85 Section 3 of the Regulation ‘Arzt und Öffentlichkeit 2014’ and Article 3d of the ‘Werberichtlinien gemäß § 35 Abs. 5 Zahnärztegesetz’.
86 Section 5(1) of the Regulation ‘Arzt und Öffentlichkeit 2014’ and Article 5a of the ‘Werberichtlinien gemäß § 35 Abs. 5 Zahnärztegesetz’.
87 Sections 136(1) and 199(3) ÄrzteG and Section 89(5) Nos. 2 and 3 ZÄG.
88 Section 38 of the Nursing Act (Gesundheits- und Krankenpflegegesetz – GuKG).
89 OGH, 28 March 2017, file No. 4 Ob 241/16v – Zahnarztwerbung VII.
90 VwGH, 25.11.2015, file No. Ra 2015/09/0045.
91 See: www.aerztekammer.at/nft-medizinundwissenschaft/-/asset_publisher/Oy45/content/id/8677346?_101_INSTANCE_Oy45_redirect=%2Fnft-medizinundwissenschaft; www.aerztekammer.at/nft-medizinund wissenschaft/-/asset_publisher/Oy45/content/id/11466984?_101_INSTANCE_Oy45_redirect=%2Fnft-medizinundwissenschaft, 25 July 2017.
92 Kopetzki, Impfpflicht and Verfassung, RdM 2017/42.
93 ECHR, Solomakhin case, 24 September 2012.
95 Transplant-Jahresbericht 2016, im Auftrag des Bundesministerium für Gesundheit und Frauen, p. 24, table 3.5.