Contributed By Walder Wyss Ltd
The bribery offences in criminal law can be found in Article 322ter et seqq. of the Swiss Criminal Code (StGB). Article 322octies StGB (bribery of private individuals) and art. 322novies StGB (accepting bribes) regulate private corruption and include the criminal liability of both the bribing and the bribed person. The bribed person must be “an employee, partner, agent or any other auxiliary of a third party in the private sector” (Article 322octies StGB and Article 322novies StGB). A doctor with a public function (eg in a public hospital) may also fall under the active and passive bribery provisions for Swiss public officials (Article 322ter and Article 322quater StGB). With regard to Swiss public officials, the acceptance and granting of advantages (so-called climate care/feeding) is also punishable (Article 322quinquies and Article 322sexies StGB).
It is prohibited to grant, offer or promise material benefits to persons who prescribe or dispense medicines or to the organisations that employ them and for such persons or organisations to solicit or accept such material benefits. However, material benefits of modest value that are related to medical or pharmaceutical practice as well as commercially and economically justified discounts that directly reflect on the price are permitted (Article 33 HMG). Material benefits of modest value must not exceed CHF300 per healthcare professional or healthcare organisation and per year.
Persons who exercise a university medical profession in the private sector and under their own professional responsibility are obliged to exclusively protect the interests of patients and to act independently of financial advantages when collaborating with members of other healthcare professions (Article 40 lit. e MedBG).
Healthcare professionals must, in any case, pass on direct or indirect financial advantages granted to them by pharmaceutical companies to patients or healthcare insurances with regard to medicines covered by compulsory healthcare insurance (Article 56 paragraph 3 lit. b KVG).
The Pharma Cooperation Code states that benefits must not constitute an inducement to recommend, prescribe, acquire, supply, sell or administer specific medicines. Pharmaceutical companies may not offer, promise or grant any inappropriate benefits to healthcare professionals, healthcare organisations or patient organisations including, in particular, any gifts (either in cash or non-cash considerations). However, pharmaceutical companies may offer objects, information and training materials of moderate value to healthcare professionals if they are intended solely for the medical or pharmaceutical activity or are used for post-graduate or continuing education in medicine or pharmacy and if they are, in both cases, also beneficial to patients. The same holds true for writing implements and note pads of modest value that are made available to participants at events by pharmaceutical companies; these writing implements and note pads may, however, not bear any references to the pharmaceutical company or to particular medicines (rule 14 Pharma Cooperation Code).