[Legal rights of the physician as the defendant]

Until recently, physicians were confronted with a certain risk of prosecution typical of the medical profession such as personal injury or sometimes manslaughter. Now, physicians are compelled to face accusations apparently outside of this profession such as fraud, embezzlement, or cheating. When physicians get contact with the executive power (i.e. on the occasion of a search), it should be questioned whether one is seen as an accused or as witness. Both positions contain different rights and duties. The witness always has to testify. He can refuse to testify due to personal and professional reasons. Additionally, he may refuse to answer questions that would expose himself or a relative to the risk of charges. According to the German constitution, the witness may request the support of a lawyer. The main duty of the accused is to endure the proceedings against him. There is no option to appeal against the opening of criminal proceedings. The most important rights of the accused are the right to refuse the testimony and the right to be heard at court. The right of hearing includes the right to decide about the time and kind of a possible attendance during the proceedings. This right should be used in any case. Every unconsidered or uncertain statement may be of severe disadvantage. It is regularly indicated to ask a lawyer for legal support which is also the right of the accused. During testimony, the physician faces the problem whether he is allowed to reveal facts that are subject of medical discretion. He has the right to do so if he is unable to refute the accusation otherwise leading to legal sanctions or to a charge. The specific rights and options of an attorney include the scrutiny of the procedures of the executive power and the active participation to find the true facts of the case. It is the attorney but not the accused who has the right to examine the records. Both have the right to influence the criminal proceedings by contribution of evidence.