Criminal liability of an expert doctor for providing a false opinion

Abstract

Since the Middle Ages, the need to appoint expert doctors to assist the courts in dealing with cases was recognised. Nowadays, the participation of experts is indispensable in many cases. Procedural regulations require that they be consulted in all cases where specialist knowledge is needed, including in the field of medicine. Such a necessity arises both in civil proceedings, mainly to determine the health condition of the injured party, who claims compensation, and in criminal proceedings. In this area, experts speak primarily in cases of acts that result in bodily harm, as well as if there is a need to establish the state of health of the perpetrator. Their expert assessments are an important signpost for procedural authorities and may have a decisive influence on the decision. Opinions must therefore be reliable, prepared conscientiously and based on the current state of knowledge. These requirements have been secured by criminal sanctions. Presenting a false opinion is a crime described in Article 233 § 4 and 4a of the Criminal Code. The shape of this provision is a result of the amendment to the Code which took place in 2016. However, the current editorial office raises many doubts. Therefore, the article presents the subject and subjective side of this offence, its punishability and coincidence with other regulations typifying prohibited acts. In particular, the controversy concerning the „presents” character is discussed. This issue is used to answer the question about the formal nature of this crime. The responsibility for the unintentional type of crime is also discussed in more detail, especially rules that established whether an expert has violated the precautionary principles required for drawing up an opinion. The section on punishment indicates the penalties and compensatory measures that may be imposed for the offence under consideration. The next part focuses on cumulative concurrence of penal law provisions and the attestation of an untruth. The statutory level of punishment for an intentional act is also undermined. The discussion is concluded with proposals to revoke or modify the regulations in question, and with de lege lata appeal to the procedural bodies for the correct application of these provisions.