Law directly related to medical practice

Many elements of law, impossible to comprehensively list, pertain to medical practice in Belgium. This article addresses those essential for every physician to know. Laws governing medical ethics are discussed in another article.

Belgian legislation is accessible online.

Article 422 bis of the Penal Code: Failure to Assist a Person in Danger

A physician is generally subject to more severe sanctions than an ordinary citizen in this context. However, as with any citizen, there is no offense if a physician refrains from intervening when it poses a danger to themself or a third party (e.g., not performing mouth-to-mouth during CPR [tuberculosis], not providing assistance when adequate masks are unavailable, and toxic gas exposure is suspected).

Article 458 of the Penal Code: Medical Confidentiality

A criminal penalty is provided for breaking medical confidentiality (even at the patient's request).

However, there are certain exceptions:

• Legal exceptions (defined by law): birth and death registration, testimony before a judge (never before the police), reporting epidemic diseases, the need for the physician to defend themselves in court, terrestrial insurances, minors, and incapacitated individuals, etc.
• The 1987 ruling of the Court of Cassation, although very imprecise, mentions any situation that could seriously harm the patient or a third party. In all cases, it is the sole responsibility of the physician to judge the appropriateness of breaking medical confidentiality, even if it means having to answer to the courts or the Medical Board.

1987 Court of Cassation Ruling

Primarily based on the concept of assisting persons in danger, this ruling specifies that in cases of conflict between medical confidentiality and moral values, in a situation of necessity, breaching confidentiality is a "lesser evil in the face of a serious and imminent harm that may occur if the facts are not disclosed." This covers cases of abuse against incapacitated individuals, for instance.

It should be noted that this ruling was issued by the Court of Cassation in response to an appeal by a physician who had been sanctioned by the Order of Physicians, illustrating the difficulties of interpreting medical ethics and the contradictions between legal and regulatory imperatives.

Articles 348-353 of the Penal Code: Partial Decriminalization of Voluntary Pregnancy Termination (VPT)

Contrary to popular belief, VPT is generally prohibited in Belgium, but the 1990 law provides that there is no offense when it is performed under certain conditions ("partial decriminalization"):

Pregnancy is less than or equal to 12 weeks of gestational age (14 weeks since the last menstrual period). Specialized care center, appropriate information, evidence of distress and determination, a 6-day waiting period between the initial request and VPT, written consent from the woman on the day of VPT. Beyond 12 weeks of gestational age, if there is a serious risk to the mother's health or if it is certain that the unborn child will suffer from a severe and incurable condition (requires a second physician's opinion). Every VPT must be reported to the evaluation commission. No healthcare worker is obligated to participate in a VPT.

1999 Royal Decree on the Medical Record

A medical record must be kept for every patient, to be preserved for at least 30 years. It must include:

• Patient's identity, family and personal history, medical history.
• Results of clinical and complementary examinations.
• Consulting physicians' opinions.
• Provisional and final diagnoses.
• Implemented treatments, surgical protocols.
• Disease progression.
• Possibly, autopsy protocol.
• Discharge report.

The patient or their legal representative has the right to access, through a physician of their choice, the objective data in the medical record.

2002 Law on Patient Rights

• Quality services, without discrimination.
• Right to choose the practitioner freely.
• Right to information (the basis of autonomy, enabling the patient to actively participate in their treatment). The patient can request, in writing, that information be transmitted to a trusted person. Right to non-disclosure of information if requested by the patient (unless non-disclosure harms the patient or a third party, following advice from a colleague and the designated trusted person).
• The practitioner may exceptionally withhold information if it poses a serious threat to the patient's health (after consulting a colleague). The designated trusted person is informed, and this is recorded in the medical record. Right to freely consent to any intervention.
• Right to withdraw or refuse consent.
• In cases of emergency with uncertainty about the patient's or their representative's will, necessary interventions are performed.
• If the patient is a minor (or otherwise dependent) and their parents/guardians refuse consent for a necessary procedure, the physician may inform the Public Prosecutor, who can temporarily remove parental authority, etc.
• Right to a medical record. Right to consult the record within 15 days of the request, except for personal annotations and data concerning third parties. Right to obtain a copy of the record at cost, unless the physician suspects that third parties (liable for prosecution) pressured the patient to obtain the record. After the patient's death, their relatives may consult the medical record unless the patient objected during their lifetime. If deemed appropriate, the physician can deny access to the medical record but must allow access to another physician appointed by the patient.
• In the case of a minor, the rights are exercised by the parents, but it is the physician's responsibility to assess the child's maturity and capacity to actively participate in decisions concerning them.
• For an adult patient unable to exercise their rights, the rights are exercised by the person designated to act on their behalf (in writing, specific, dated, and signed mandate, revocable by the patient or the proxy). In the absence of a proxy, the spouse/legal or common-law cohabiting partner, followed by an adult child, followed by another adult relative, will ensure the patient's interests. If none are available, refuse the role, or fail to agree, the physician will take responsibility for the patient's interests. However, the patient will be involved in exercising their rights as much as possible. Furthermore, if such a person exists, but the physician believes their decision seriously harms the patient's interests, the physician may override the decision, unless the person can prove that their decision aligns with the patient's explicit wishes.
• A Federal Commission for Patient Rights is established. Its missions include collecting and processing data on patient rights, providing opinions to the Minister of Public Health on patients' and practitioners' rights and duties, evaluating the implementation of the Patient Rights Act, evaluating the functioning of mediation functions, handling complaints related to mediation. Composition: patients, practitioners, hospitals, insurance organizations.
• A mediation service is established within the commission, competent to refer a complaint to the appropriate mediation function or handle it themselves.
• The hospital is responsible for the failures of its practitioners. The hospital must have a mediation service.
• Regarding terrestrial insurance contracts, a physician, at the patient's request, may provide a certificate describing the patient's current condition based on their history. However, they cannot provide personal opinions or assessments of the patient's future condition (based on genetic analyses, for example). This certificate can only be transmitted to the insurer's medical advisor. In the event of the patient's death, a certificate simply stating the cause of death will be transmitted to the insurer's medical advisor, provided that the insurer has obtained the insured's prior agreement.

Note: It is impossible to fully inform a patient. However, it must be ensured that they receive at least the minimum information necessary for an informed decision.

In case of a breach of this law, the patient has the right to file a complaint with the mediation commission.

2002 Law on Euthanasia, Amended in 2014

Euthanasia = an act aimed at ending a person's life at their request.

Euthanasia remains an offense, unless it is performed by a physician under certain conditions:

• The patient is an adult or an emancipated minor or a minor "capable of discernment", conscious and capable at the time of the request. Only the patient can make such a request.
• The request must be clear, repeated and without pressure.
• Medical situation with no way out, serious and incurable disease + constant and unbearable physical or psychological suffering that cannot be alleviated.
• Patients must put their request in writing. If unable to do so, he/she may have it recorded by an adult who has no interest in his/her death.
• The physician must first :
  • inform the patient of his or her condition and life expectancy
  • ascertain that the patient is still suffering and that he/she wishes to die
  • Consult another, independent physician about the condition.
  • If the patient is an unemancipated minor, a child psychiatrist or psychologist should also be consulted + inform the minor's legal representatives and ensure that they support the request in writing
  • Talk to the patient's next of kin, if this is their wish.
  • Allow at least one month between the patient's written request and euthanasia
• Everything, including the patient's repeated requests, must be recorded in the medical file, which is the only authoritative record of whether everything was done correctly.
• Within 4 working days of euthanasia, the doctor must submit the registration document to the Federal Commission for Supervision and Evaluation.

In the case of an advance declaration: written recording of the patient's desire for a physician to perform euthanasia if they suffer from a severe and incurable disease, are unconscious, and their condition is deemed irreversible based on current knowledge. Must be formalized by two adult witnesses. Valid for 5 years.

Note that the law is subject to interpretation regarding individuals with dementia.

The federal control and evaluation commission is composed of 16 members: 8 physicians, including at least 4 university professors, 4 lawyers/law professors, and 4 members from backgrounds dealing with incurable diseases. It creates the registration document and verifies the registration documents. In case of doubt, it may decide to lift anonymity (consults the sealed first part containing identification), request the treating physician to send the medical record elements related to euthanasia, and summon the physician who performed euthanasia. By a decision majority of 2/3, it may decide to forward the file to the Public Prosecutor.

No physician or other person is obliged to participate in euthanasia. The physician must timely inform the patient, providing motivation for their decision: personal or medical reasons.

A person who has died as a result of euthanasia is deemed to have died of natural causes for all contracts to which they were a party.

Auteur

Dr Shanan Khairi, MD