Citation

Haendel K. Blutalkohol 1977; 14(4): 193-204.

Copyright

(Copyright © 1977, International Committee on Alcohol, Drugs and Traffic Safety and Bund gegen Alkohol und Drogen im Straßenverkehr, Publisher Steintor Verlag)

DOI

unavailable

PMID

unavailable

Abstract

The author examines whether and under what suppositions a physician, especially a physician practising in the public service, is engaged to execute a blood sampling according to paragraph 81a of the Strafprozeszordnung against the will of the concerned. In some cases there could exist a legal duty to such a medical activity but the realization of it in the case of need cannot be forced by the police. Free practising universal, as well as specialist physicians can decline the assistance at a blood sampling at any time, even if the delinquent does not refuse. This is also valid if they are practising in readiness service or as a physician in case of necessity. Physicians bound by treaty, that are physicians with whom the police expressly or by tacit understanding has agreed upon the execution of blood samplings, must keep their engagement, but in case of a refusal which might yet occur, there is no possibility to compel them to keep their engagement. Official physicians can be obliged to execute blood samplings according to the law of a country. Offences then could have official-judicial consequences. But in case of a sudden refusal, the police too, have no possibility to force the medical action. Apart from this official physicians seldom are in reach because they also have to officiate often outside of their office during the day. To charge them solely with the blood sampling in virtue of the law, if all other physicians would decline, would therefore be of no practicable solution. Similar considerations are valid for police-physicians so far as they are in main-official service in larger cities. Institutes of forensic medicine are found only in university cities. From personal and locational causes they scarcely can be drawn near to blood samplings in a greater extent. Besides, this activity could not also be forced by the police. Principly, for hospital-physicians the validity is the same as for free practising physicians. Officially, however, the hospital can agree with them upon a duty for activity. He who does not intend to sign a corresponding labour contract must renounce employment in the concerned hospital. He who has signed the contract, and afterwards does not keep it, must take into account disciplinary or labour judicial consequences. The police in case of a violation of duty again have no possibility to force the medical activity. All cases in which duties fixed by contract or by the law of a country are infringed could be a punishable action according to paragraph 258 StGB (defeat of penalty). A solution of the problem first needs exhaustive enlightenment of the physicians. The physicians taking a refusing point of view should consider that the result of the examination must not always take effect to the disadvantage of the concerned, and they should consider, above all, that heavy disadvantages are to be expected for the persons hurt by the delinquent, respectively in the case of death for the relations if the fact of case cannot be cleared up completely by reason of their refusal. If a satisfying practice sufficient for traffic safety, can not be obtained, examples of other countries (e.g., Switzerland) could be used as an ultima ratio a legal regulation according to which the refusal of having blood sampled is threatened with penalty.