Einschränkungen der Handlungs- und Therapiefreiheit der Ärzte und der gesundheitlichen Versorgung der Bevölkerung durch Verknappung der wirtschaftlichen und personellen Mittel – Was sind die Gebote der § 2 Abs. 1 und 4 Musterberufsordnung noch Wert?

Abstract

Up to the early 1990's the health care system was essentially characterised through:--the insured' right of choice of therapist,--therapeutic freedom of patients and physicians, and--the freedom of establishment for medical doctors.--In accordance with the Hospital Funding Act the hospital system was--in compliance with federal constitutional law using capacity requirements--based on the "fire-fighting" principle, i.e. that if required, every patient should have access to a suitable hospital bed within about 15 minutes.--The responsibility for ensuring the provision of general and specialist health care services had been conferred by the government to the National Association of Statutory Health Insurance Physicians (1955) in the legal form of a public corporation. In the face of a foreseeable rise in expenses as a result of advances in medicine and a higher demand for health care services because of the demographic development (long-life society) the Advisory Council for Concerted Action in Health Care concludes in its Annual Report that maintaining this level of health care for all people is not financially viable any longer. This is why the state--on the basis of the Health Care Reform Act of 2002 and the Statutory Health Insurance System Modernisation Act of 2004--retreated from the provision of services in the ambulatory and inpatient setting by privatising these sectors and by proclaiming competition (introduction of diagnosis-related groups). Presently, the once liberal performance tradition is more and more turning into a centrally planned system in the spirit of "From Therapeutic Freedom to Therapeutic Programmes". The guidelines that on the basis of the methods of evidence-based medicine were developed by the international community of physicians for the treatment of patients with defined diagnoses and intended to be decision aids for individual treatment decisions are now used to implement disease management programmes for the provision of health care to people with certain chronic diseases. Another steering instrument of the above mentioned Modernisation Act is the definition of a list stating all the benefits available under the statutory health insurance system. The assessment of the health gain of new medical drugs and other medical procedures has been assigned to the Institute for Quality and Efficiency in Health Care (IQWiG) specifically founded to that purpose. With regard to the assessment of diagnostic and therapeutic procedures the Joint Federal Committee (Gemeinsamer Bundesausschuss, G-BA) in the summer of 2005 gave itself a Code of Procedures that defines uniform cross-sector criteria for the appraisal of diagnosis and treatment. In Germany the principle of evidence-based health care has by law--and this is unique as compared to other countries--fully penetrated everyday health care where the decisions of the Joint Federal Committee in the form of directives have mandatory effect for health care providers and hence for the insured, too. This is why the German Medical Association and the National Association of Statutory Health Insurance Physicians have embarked on the implementation of the "National Programme for Disease Management Guidelines" and the "Health Services Research" Project as a means of continuously evaluating health care provision which are intended to guide the future political control of the system of statutory health insurance in terms of target-performance comparisons and for the purpose of identifying health care deficits.