Medical Liability Source of Sanction I:

“The criminal liability of the dentist”

Goals:

• Know the definition of criminal fault
• know the different criminal offences in order to prevent them.

1. Introduction :

Medical liability and the questioning of this liability before the courts has a reality which draws its foundation from the law, that is to say that it is imposed on every dentist, who is himself presumed to know the principle.

Like any citizen, the dentist is responsible for his actions before society. He is particularly responsible for his professional activity.

Moreover, and unlike anyone else, the texts repressing certain offences involving the health and bodily integrity of others, expose him more particularly to prosecution by the very fact of the object of his profession.

Criminal liability may be called into question, regardless of the quality and mode of practice of the dentist.

For this, it is sufficient that the fault constitutes an offence for which the punishment is provided for in the Criminal Code.

2. The main types of faults:
   • Faults by commission
   • Faults of omission: this is abstention, negligence, inattention.
   • Faults due to failure or violation of an obligation of prudence or safety defined by law or regulations
3. Attacks on bodily integrity :

The criminal penalty varies depending on the seriousness of the damage.

2.  Unintentional attacks on bodily integrity: 

The criminal liability of the dentist is incurred when he is the direct author of the damage, or when he created the situation in which the damage occurred in breach of the rules of prudence.

3. Offenses concerning the medical profession:
   1. Illegal practice of the profession:

Conditions for practicing health professions

Law No. 18-11 of 18 Chaoual 1439 corresponding to July 2, 2018 relating to health. The exercise of health professions is subject to the following conditions:

• be of Algerian nationality;
• hold a required Algerian diploma or a recognized equivalent qualification;
• enjoy his civil rights;
• not have been the subject of a criminal conviction incompatible with the exercise of the profession;
• have the physical and mental capacities which are not incompatible with the exercise of the health profession.

Health professionals are required to register with the corresponding professional association.

2. Violation of professional secrecy:

Professional secrecy is required of all dentists and is in the interest of the patient.

Professional secrecy covers everything that comes to the dentist’s attention in the exercise of his profession: what was confided to him, what he saw, what he heard or understood.

The dentist must ensure that the persons assisting him respect their obligations in terms of professional confidentiality.

Professional secrecy is not abolished by the death of the patient except to assert one’s rights.

The Algerian Penal Code (CPA): Article 301 “Violation of medical confidentiality, the penalty is imprisonment of one to six months and a fine of 500 to 5,000 DA.”

3. Refusal to comply with requisitions:

A requisition is a procedure by which a judicial or administrative authority asks a dentist to perform a medico-legal act.

Refusal is considered an offence (Algerian penal code). Justifications for the obligation to comply with a requisition:

• force majeure (illness, physical incapacity, etc.)
• proven technical incompetence in the area concerned by the requisition.
• temporary incapacity of the dentist: provides urgent care to another patient.

Refusal to comply with requisitions is punishable by a fine of 20,000 to 100,000 DA and 2 to 6 months of imprisonment in accordance with the provisions of Article 187 bis of the CPA.

4. Issuance of false certificates:

This criminal offence consists of issuing a medical certificate whose content is materially inaccurate.

The medical certificate is the written attestation of clinical and paraclinical findings, positive or negative, concerning the state of health of an individual who has benefited from a medical examination.

The issuance of a biased report or a certificate of convenience is prohibited. Articles 226 and 228 of the CPA severely punish the drafting of false certificates or certificates of convenience (up to 3 years of imprisonment and a fine of 20,000 dinars).

3. Conclusion :

Medical liability has become a particularly anxiety-provoking issue for health professionals today.

The complexity of the health system and the legal technicality of medical liability make it difficult to understand the professional risks of practitioners.

Possible actions to prevent criminal liability being brought into question are based on the quality of contacts with the victim prior to the complaint, and on the observation of good practices in daily activity.

Bibliography:

1.MMHANNOUZ Legal approach to medical liability in Algerian law DESM thesis 1981

2.P.CHARIOT & M.DEBOUT: treatise on legal medicine and health law volume 2.

3. Executive Decree 276/92 of July 6, 1992 establishing the code of medical ethics
4. Law No. 18-11 of 18 Chaoual 1439 corresponding to July 2, 2018 relating to health

Criminal liability of the dentist

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Criminal liability of the dentist