A judgement recently issued by the 5th Criminal Section of the Court of Cassation has confirmed a ruling pronounced by the Court of Appeal of L’Aquila (central Italy), which had sentenced a doctor to 5 months’ imprisonment for prescribing drugs not only without first examining the patient, but without the patient even being present. Actually the legal aspects of this case were connected to the prescriptibility of the drugs, which are paid for by the National Health Service and not by patients themselves, in view of which the facts would amount to the crime of fraudulent misrepresentation, and consequently require the application of article 479 of the Criminal Code, since a panel doctor (i.e. operating under the National Health Service) is considered a public official. The relevant articles of the Criminal Code are applied to any public official who, in public acts (art. 479), on certificates or in administrative authorisations (art. 480): “in the performance of his duties, untruly certifies that a fact has been performed by himself or has occurred in his presence, or certifies having received statements which were actually not made to him or however untruly certifies facts which the act itself aims to prove true, is subject to the penalties specified under article 476 (three months’ to two years’ imprisonment)”. In the matter at hand the family doctor had been found guilty of writing and signing prescriptions on the basis of a prescription attributed to the doctor (retired) who had preceded him in his post, without having direct acquaintance of the patient nor cognizance of the illness afflicting him. I shall omit delving into the matter of the High Court’s decision, not least because we lack the full documentation of the three grades of judgement, but the subject is assuredly important for its many implications in the day-to-day exercise of the medical profession, and not only as regards the offence of fraudulent misrepresentations for prscriptions charged to the National Health Service. The extreme bureaucratization of the medical profession has sometimes led to forget the specific duties and elementary rules associated with compiling prescriptions, requesting the services of specialists and making out medical certificates. No doubt a joint decision is the best basis on which to express one’s opinion of a prescription to be endorsed, but when a physician signs a document such as a prescription for the purchase and – especially - the administration of drugs, or for radiotherapy, or for the administration of a contrast medium, he directly and personally assumes all civil, penal and professional responsibility for that prescription. If a doctor, for reasons due to bureaucracy, meets with a prescription issued by an external specialist, or has to do with a patient being treated by an independent hospital that has prescribed a therapy to follow or tests to perform, he must not limit himself to the mere transcription of others’ requests, but should incorporate them into his own opinions and decisions, on the basis of which he will then write out his own prescription, under his complete responsibility. Unfortunately the obsessions of bureaucracy sometimes bring doctors to overlook personal responsibilities and to consider sufficient the circumstance that a patient has been examined previously by the doctor himself or elsewhere by another physician. Individual liability cannot be delegated to others, and the fact that a patient has been under the same treatment for years does not constitute a justification; nor can one defend oneself by attributing the responsibility to the previous colleague. There sometimes exists an instinctive reciprocal trust between doctors and patients that can lead to disregarding statements made by a patient himself or, worse still, by the relatives of a patient in his absence. The constraints imposed by the laws on privacy should be enough to compel a doctor not to issue certificates on the grounds of statements made by third parties. In addition to the signature, the date appearing on a prescription also bears evidence to the fact that on a certain day and at a certain time the patient was physically present in the doctor’s surgery. There is an enormous number of legal cases - especially on the subject of justified leaves from the workplace - between doctors, public health offices, prosecutors and the medical association, whereby the latter is often obliged to mete out disciplinary punishments in the presence of blatant discrepancies between the date on which a medical examination actually took place and the date when the relative certificate was issued, albeit when done in good faith. Sometimes we encounter solicitations for the transcription of requests for diagnostic tests to be made out in advance by nurses for reserving special examinations, even before the specialist has had any chance to meet the patient for the first time. Television has accustomed us to programmes which become live medical examinations, in which patients relate their medical problems in the studio or over the telephone, transforming a televised query into an actual medical consultation. Medical examinations are and should be considered a serious matter, both as to what the doctor can give the patient in terms of physical presence and listening, and for the opportunity that the doctor has to learn through direct inspection all that concerns the pathological state of a patient at that time, which is not the same as that of the previous day, nor the previous week, nor the previous month. A prescription can only be the final act of a process of reasoning with which a doctor crowns his work of intellect, at which time only should he apply his signature, thereby personalising and giving completion to his own medical prescription. (trad. Interpres sas Giussano)

(trad. Interpres sas Giussano)