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Photo: Ralph Peters / imago images / Ralph Peters
Doctors who, as a convenience, issue exemption from the mask requirement, not only make themselves liable to prosecution - people who order such exemption must also expect a penalty.
The Freiburg Regional Court decided in a decision that has now been published.
In the specific case, the police found a 76-year-old man without a mask at a place where the mask requirement applies.
When asked about it, he showed a certificate.
According to this, "wearing a face mask is contraindicated for medical reasons" and therefore "unreasonable".
The man later admitted that he had ordered the certificate from a doctor by telephone and received it for a payment of six euros.
The public prosecutor applied for a penalty order for 20 daily rates of 30 euros each.
The man had submitted an "incorrect health certificate".
The Freiburg District Court had still upheld the lawsuit directed against this.
With its decision of August 5, 2021, now published in writing, the regional court overturned this decision and referred the dispute back to the local court for re-examination.
Investigation must be carried out
The district court confirmed that the certificate was an "incorrect health certificate".
According to the penal code, issuing doctors must therefore expect a fine or imprisonment of up to two years.
Anyone who makes use of such an incorrect testimony can be fined or imprisoned for up to one year.
According to the Freiburg judgment, an "incorrect health certificate" does not have to contain a diagnosis.
The certificate is also incorrect "if the basis of the assessment that was also declared does not correspond to the truth in one essential point".
This is usually the case "if the examination required to assess the state of health has not been carried out".
As a justification, the regional court stated that trust in a medical certificate is based on trust in "proper information acquisition".
According to the law, only advice or treatment is permitted by telephone or other electronic media.
Medical reports and certificates, on the other hand, should not be based solely on the information provided by the patient.
"Regardless of the question of which type of assessment corresponds to the rules of medical art in the individual case, a telephone assessment when issuing a medical certificate is in any case not sufficient in the opinion of the Board of Appeal," says the Freiburg judgment.
Man did not turn to family doctor
»Even with the exemption from the general obligation to wear a mask, which parts of the population perceive as rather annoying, the medical certificate should provide an increased guarantee that the person's health or medical reasons speak against wearing a mask, and not just because of them individual displeasure, "it said.
A doctor who issues such a certificate is therefore also making a declaration that he has personally examined the patient.
If no physical examination was carried out in individual cases, this must be evident from the certificate, demanded the Freiburg judges.
In the present case, however, there was no personal contact between the 76-year-old and the doctor who issued the certificate.
The man probably also knew that the certificate was false.
Otherwise, he would have turned to his family doctor and not the doctor who practiced 212 kilometers away with the request for a mask release certificate.
File number: 2 Qs 36/21
ptz / jur
