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W4309258210 abstract "Open AccessThe criminal liability of health care professionals treating anabolic steroid users under the SpoPAA medical and legal analysisDominique Diethelm, Gian Ege, Malte Christian Claussen, and Samuel IffDominique DiethelmDominique Diethelm, MLaw, LL.M., Rechtswissenschaftliches Institut, Universität Zürich, Treichlerstrasse 10, 8032 Zürich, Switzerlanddominique.diethelm@rwi.uzh.chhttps://orcid.org/0000-0001-8547-4106 Faculty of Law, University of Zurich, Switzerland Search for more papers by this author, Gian Egehttps://orcid.org/0000-0002-6206-5737 Faculty of Law, University of Zurich, Switzerland Search for more papers by this author, Malte Christian Claussenhttps://orcid.org/0000-0002-8415-3076 Department of Psychiatry, Psychotherapy, and Psychosomatics, Psychiatric University Hospital Zurich, University of Zurich, Switzerland Private Clinic Wyss AG, Münchenbuchsee, Switzerland Adult Psychiatry, Psychiatric Services Grisons, Chur, Switzerland Search for more papers by this author, and Samuel IffSamuel Iff, M.D., Sahlistrasse 1, 3012 Bern, Switzerlandsamuel.iff@pm.mehttps://orcid.org/0000-0002-4441-5465 Department of Psychiatry, Psychotherapy, and Psychosomatics, Psychiatric University Hospital Zurich, University of Zurich, Switzerland Institute for Social and Preventive Medicine, University of Bern, Switzerland Search for more papers by this authorPublished Online:November 17, 2022https://doi.org/10.1024/2674-0052/a000029PDF ToolsAdd to favoritesDownload CitationsTrack Citations ShareShare onFacebookTwitterLinkedInReddit SectionsMoreIntroductionThe use of image and performance enhancing drugs (IPEDs) is common among gym-goers and fitness athletes, and its usage is on the rise [1, 2]. Among IPEDs, the anabolic-androgenic steroid (AAS) is the most commonly used drug [3]. Corresponding with the rise of IPED use, some AAS users seek professional advice in case of questions or side effects [4, 5]. In practice, healthcare professionals (HCPs) follow the principle of harm reduction and adhere to medical guidelines regarding optimal treatment for a patient [6]. For the treatment of AAS users, the scientific medical standards frequently suggest prescription of substances prohibited under anti-doping regulations [7]. Could this lead to criminal liability according to Article 22 of the Sports Promotion Act (SpoPA) [8], which criminalizes the prescription or administration of prohibited substances?In regulated sports competition, adhering to anti-doping rules is crucial to ensure the fairness and integrity of sport. However, only very few individuals who visit the gym for fitness or bodybuilding regularly compete in any form of contest. They mostly use IPEDs to improve their looks and rarely their performance in the gym [9]. The HCP’s harm reduction is therefore very unlikely to influence the fairness and integrity of (professional) sports competitions, yet it is important help for AAS users.In this paper, we want to discuss the medical considerations behind a treatment for AAS users. Subsequently, we will provide a legal comment on the risks of criminal liability of HCPs according to Article 22 SpoPA if they proceed to treat their patients as recommended by medical guidelines. The legal analysis is based on a case study to ensure relevance and comprehensibility.Medical backgroundThe use of AAS in any supraphysiological dose leads to an immediate shutdown through the negative feedback loop that controls the production of sexual hormones [10]. This drop in sexual hormones is called hypogonadism [11]. The exogenous AAS leads to a complete inhibition of the hypothalamus-piturary-gonadal axis (HPG) which controls the natural production of sexual hormones. There are sexual hormone sensitive cells in the hypothalamus which release a gonadotropine releasing hormone, that stimulates cells in the anterior pituary to produce luteinising hormone (LH) and follicle stimulating hormone (FSH). In the male body, the LH triggers the quantity of sperm production and the FSH enables sperm maturation in terms of quality. Both hormones are needed for normal sperm production and hence normal fertility. The lack of one or the other leads to oligo- or even azoospermia, a condition where the sperm count is below normal, potentially even a complete absence of sperm in the ejaculate. The exogenous use of AAS does not only lead to the diagnosis of hypogonadism and infertility but also brings other sequelae. According to studies, the most common side effects during AAS use are: Testicular shrinkage (27 % – 63 %), acne (38 % – 55 %), hypersexuality (51 %), hypertension (43 %), gynaecomastia (26 % – 34 %), mood swings (42 %), alopecia (23 %) and polycythaemia (13 %). There may also be persistent reductions in libido (38 %), oligospermia and erectile dysfunction (20 % – 33 %) [3, 12]. Most of these sequelae take months to years to return back to normal functioning. After prolonged use however, the return to normal functioning is uncommon [13].Some AAS users seek medical help to minimize the negative effects of AAS but can be reluctant to do so out of shame, fear of stigmatization, and prejudice, as well as a perceived lack of knowledge of HCPs [14, 15, 16]. Ongoing support, active harm reduction and management of side effects is likely to strengthen an AAS users’ confidence in their HCP’s advice regarding evidence-based treatments and to increase their motivation to stop using.Cessation of AAS use can often reduce or even eliminate most of the sequelae, but AAS abstinence cannot always be achieved, as roughly 30 % of users experience symptoms of addiction [17]. A key element that maintains repeated use, with elements of addictive behavior, is the fear of losing the positive aspects, for example increased strength, muscularity, and energy. Equally important, however, is the fear of unpleasant effects associated with discontinuation, e.g. loss of libido.Although abstinence of AAS use remains the main aim of the HCP and would likely resolve most negative health effects, this is not always possible. Some patients are not able to stop, do not want to stop, or fear the consequences of stopping. Therefore, the interaction between the AAS user and the HCP should primarily lead to an understanding of why AASs are being used, what the concerns are and why medical help is being sought. A non-judgmental, non-stigmatizing and supportive attitude is essential [5]. Open-ended questions can reveal the patient’s motivations, such as fear of fertility loss, protection of health or avoidance of side effects. If these factors are recognized, there is an opportunity to build understanding, minimize harm and eventually move to abstinence and medical replacement therapy if required.To provide effective harm reduction, most HCPs will rely on pre-existing evidence-based speciality guidelines. However, by following the guidelines for treatment of the conditions caused by AAS use, HCPs may be at risk of prosecution under anti-doping laws. For the treating HCP, the fear of criminalization undermines their authority as primary HCP and their ability to treat their patients. In addition, it erodes AAS users’ trust in their HCP, making them more likely to disengage from care and seek advice and treatment from unreliable sources (e.g. the internet), putting them at further risk of additional complications. This represents a missed opportunity for harm reduction, motivational interviewing, and engagement in proven, evidence-based strategies for long-term cessation of AAS use.AAS use is becoming increasingly prevalent. To minimize harm and to maximize users’ engagement in services to reduce their use, it is essential that HCPs are not put at risk of criminalization when following guidelines in treating non-professional athletes.Sales reporting of Interpharma in Switzerland in 2021 indicates over 80,000 packages of testosterone and over 90,000 packages of ovulatory stimulation hormones (like FSH and HCG) sold [18]. This indicates a high use of those substances either without awareness or in spite of their listing on the anti-doping list.Case studyThe patient has been using AAS for 2 years and he and his partner wishe to conceive a child. The patient does not wish to stop his use of AAS for personal reasons. Knowing about the reduced fertility, he turns to the HCP to ask for treatment to improve his fertility. After his diagnosis of oligo- or azoospermia, the recommended treatment, according to guidelines of hypogonadism and oligospermia [19, 20], involves the use of SERM and/or HCG, both listed on the anti-doping list of the SpoPO and the WADA list [21]. Can the HCP proceed without risk of criminal liability?The broad applicability of Article 22 SpoPAThe case study describes a HCP acting with best intentions and according to scientific medical standards. The patient is a regular gym-goer, but by no means a professional athlete, since he does not participate in any regulated competitions. The medication the HCP is recommended to prescribe by current and recognized guidelines is however on the anti-doping list of the SpoPO. The case study aims at assessing the risk of criminal liability of the HCP in this situation under the SpoPA. Is it relevant that the patient is an AAS user? Does the patient or the HCP need to apply for a therapeutic use exemption (TUE)? Or is a prescription of the aforementioned medication unproblematic?To answer these questions, an analysis of Article 22 SpoPA is necessary. Article 22 criminalizes the prescription or administration of prohibited doping substances or methods for doping purposes. Doping is defined in Article 19 Paragraph 1 SpoPA as “the abuse of substances and methods to increase physical performance in sport.” The prohibited substances and methods are listed in the appendix to the SpoPO according to Article 19 Paragraph 3 SpoPA. The analysis is focused on the HCP, as Article 22 Paragraph 4 SpoPA exempts the users themselves from criminal liability. To best understand today’s criminal provision, a historical analysis is necessary.The new SpoPA of 2011The example case reveals an issue rooted in the structure of the SpoPA as it has been revised and issued in 2011. The preceding Federal Act on the promotion of Gymnastics and Sports (version of 2002) already contained a criminal provision, yet with a different scope. Its ordinance limited the criminal liability to “regulated sports competition” [22]. With the new criminal provision in the SpoPA, the legislator intended to implement stricter criminal prosecution for doping violations [23]. This was not necessary to comply with the international standards and the parliamentarians did not further explain their intentions [24, 25]. The parliamentary discussion reveals an urge to reinforce criminal protection against doping to ensure Switzerland’s credibility in the fight against doping [26, 27]. The target in mind seemed to be illicit black market trade of doping substances and illicit imports [28]. From a criminal law standpoint this statement is surprising, considering that illegal import, trade, administration and use of (most) doping substances is already criminalized under Article 86 of the Therapeutic Products Act (TPA) [29].Nevertheless, this reinforcement of criminal liability was achieved by crossing out the limitation to regulated sports competition in the revised legislation. The Federal Court as well as the prevailing doctrine confirm a broadened application of Article 22 SpoPA outside of regulated sports competition [30, 31, 32, 33].Risk of criminal liability of the HCP due to the broad definition of sportYet what does “sport” outside regulated sports competition mean? The new definition of “sport” is essential, since Article 22 SpoPA criminalizes the prescription or administration of prohibited substances “for doping purposes”. According to Article 19 Paragraph 1 SpoPA, doping is “the abuse of substances and methods to increase physical performance in sport.”Since the renunciation of the limitation to regulated sports competition, everybody working out alone without any relation to competition or associations falls within the definition of “sport” [31]. According to the Federal Court, “sport” is further sufficiently defined with the common use of the term [34]. The term “sport” as it is used commonly, is however not substantive enough to draw legally convincing lines between patients inside and outside sports. Does a person outside sports competition need to work out once a week? Or is once a year enough? And what is a workout? Would regularly running to catch a bus or short walks to the supermarket be enough? Any distinction along those lines would be nothing but arbitrary and ignorant to the specific circumstances of the individual in question. The only practical solution for a HCP is to assume that every patient does sports, even an AAS user who does not work out regularly alongside their AAS usage. Therefore, every prescription of medication with performance enhancing qualities automatically amounts to doping under Article 19 Paragraph 1 SpoPA.This broadening of the definition of “sport” is what poses the risk of criminal liability for HCPs. For the HCP in the case study, it is abundantly clear that his patient will continue to go to the gym and therefore participates in a form of sports. The prescription of SERM or HCG – which can both be found on the anti-doping list – therefore is, in principle, a violation of the SpoPA’s criminal provision. The primary medical purpose pursued by the HCP cannot be relevant according to the wording of the SpoPA. Thereby, the legislature has implicitly introduced a prohibitive approach, essentially banning all use of the substances on the anti-doping list.Structural discrepancies arguing against criminal liabilityIt must be said that this outcome seems just if the HCP prescribes substances to a professional athlete in a competitive environment. For the patient working out alone in the gym – or even at home – this result is however more than questionable. Those doubts are corroborated by multiple structural discrepancies indicating that criminal prosecution of HCPs doing their jobs was not the legislature’s intention.Firstly, the individuals using the prohibited substances are not liable to prosecution according to Article 22 Paragraph 4 SpoPA. In the parliamentary discussion it was even stated that many of the politicians present at the meeting could be “doped” according to the legislation, but their prosecution is not the criminal provision’s intention [28]. This stems from a practical approach: Punishment of doped athletes is considered significantly more efficient when conducted through private means, which is why the state is trying to limit its resource expenditure [35]. If the SpoPA is however also applicable outside of sports competition, the patients themselves are not liable to private sanctions, because those are not applicable without a subjection under statutory law [36]. The current structure of the SpoPA therefore results in criminal liability through state provisions for a HCP, whereas the patient is not subjected to any legal consequences. Since the private use of doping substances was not intended to be sanctioned, the administration and prescription should not be criminalized either.Furthermore, other legislation applicable in the context of anti-doping, such as the Narcotics Act (NarcA) [37] or the TPA, know explicit exceptions from criminal liability if the substances are used according to recognized rules of pharmaceutical and medical science [38, 39, 40]. The SpoPA does not seem to account for the inevitable everyday legitimate use of the prohibited substances. This would fall within the legislature’s area of competency to change.Moreover, for many presenting side effects of AAS, there is no reasonable alternative to the medication containing prohibited substances. While cessation of the usage would be an alternative, the refusal of the patient to stop using does not hinder his right to treatment, and it can a fortiori not stand in the way of a HCP’s duty to provide adequate treatment [41, 42]. Considering that around one third of AAS users experience symptoms of addiction, the government’s harm-minimization approach is relevant. The goal is to accept (temporary) addiction and focus on minimizing harm to the individual and society [43]. Criminalizing the HCP treating these patients diametrically opposes the postulated mindset.Overall, the severe structural issues within the SpoPA cause significant harm instead of protecting public health [44]. The result of criminal liability of a HCP in situations such as the case study cannot be right. Criminal liability was extended without clearly stated reason, and the direct consequences deriving from the legislation do not seem to be thought through. Despite the clear result, it is a challenge to dogmatically argue against the criminal liability of HCPs. The following section of the paper will analyze possible approaches.Solutions to avoid criminal responsibility of a HCPObjective and subjective elements of the crimeIt would be most efficient and most encouraging for HCPs if the criminal liability could already be excluded in the elements of the crime. The objective elements of Article 22 Paragraph 1 SpoPA require i) a prohibited substance or method according to the anti-doping list, ii) a conduct as listed in Paragraph 1, and iii) the conduct needs to be performed “for doping purposes”. Subjectively, the provision requires intent.The prohibited substance or method as well as the conduct under Paragraph 1 will not be further looked at, since they will be fulfilled in most situations assessed here. For the HCP in the example: SERM and/or HCG are both on the list of prohibited substances, and the relevant conduct is the prescription and administration.No need for proof of enhanced physical performanceArticle 22 Paragraph 1 SpoPA does not require any proof of an actual performance enhancing effect of the substance on the athlete. Adding this condition – while promising at first sight – is not a feasible solution in practice. For multiple substances on the WADA list as well as the SpoPO list, there is no conclusive scientific evidence whether it enhances physical performance or not [45]. This would lead to significant issues regarding the applicable standard of proof. It would not be possible for the prosecution to prove the performance-enhancing effect or even more so for the HCP to prove the opposite – whereas the latter would also be a problematic shift in the burden of proof.This zero-tolerance approach can be justified from a private measure’s perspective, wanting to take no risks in ensuring fairness in sports. Since the SpoPA is however also applicable outside regulated sports competition, it can be questioned whether this approach is a valid foundation for penalties as grave as incarceration.While WADA regulates thresholds for certain substances [46], such limitations are nowhere to be found under the SpoPA [47, 48]. Miniscule traces of substances given to an athlete via blood transfusions six months ago can still amount to a violation of the anti-doping rules [49]. For national criminal law, the abstract threshold for a violation should be increased and not simply copied from a private disciplinary system.IntentIn practice, authorities argue against an intent for doping since the relevant conduct is completed for medical rather than doping purposes. The Federal Council Dispatch to the SpoPA clarifies that Article 22 requires intent for someone to be prosecuted, negligence is therefore insufficient [50]. What is sufficient on the other hand – and apparently not primarily considered in practice – is the contingent intent (Eventualvorsatz). Swiss criminal law states in Article 12 Paragraph 2 Criminal Code (CC) [51], that a person already acts with intent, if they regard the realization of the act as being possible and accept this outcome. That is to say a HCP, knowing about the performance enhancing effect of a medication and prescribing it anyway because it helps the patient, acts with intent. They might not specifically want to dope the patient, yet they accept the effect of the treatment. There even are situations, in which the performance enhancing effect is part of the necessary treatment and therefore expressly desired, for example for the treatment of sarcopenia, cachexia or severe burns [52, 53]. Since a HCP needs to be aware of the effects of prescribed medication and needs to assess the individual patient’s situation before prescribing, there does not seem to be a scenario in which the HCP can plausibly argue for negligence [54, 55]. Every informed prescription therefore automatically equals an intent for doping, due to the broad concept of sport under the SpoPA. The only option to avoid liability on the level of intent is if direct intent (Absicht) is required. There is however no indication in either the provision, or in the Federal Council Dispatch, that contingent intent is excluded. Furthermore, since doping and treatment effects are often congruent, it is questionable whether direct intent could be convincingly negated in the majority of cases.Conclusion regarding the elements of the crimeIn conclusion, there is no convincing argumentation to reject criminal liability of a HCP on the level of the elements of the crime. With the broadening of the state anti-doping regulations to sports outside regulated competition, the legislature introduced a hidden prohibitive approach, in principle forbidding all use of substances or methods on the list. This conclusion is corroborated by the lack of thresholds for the prohibited substances.Justification: Act permitted by lawSince the elements of the crime are fulfilled, the next logical step is to analyze whether the HCP’s conduct can be justified.It has been frequently mentioned that the HCP in the case study follows scientific medical standards and therefore adheres to their professional duties [56, 57, 58]. Thus, the question arises, whether Article 14 CC could be applicable. It states that “any person who acts as required or permitted by the law, acts lawfully even if the act carries a penalty under this Code or another Act.” There is no unanimous Swiss doctrine as to the formal legislative requirements of the “law” within the meaning of Article 14. Whether a formal act issued in the respective parliamentary procedure is necessary or if a more liberal approach is indicated can be left unanswered here [59, 60, 61]. The mere fact that a HCP is subjected to professional duties, is not sufficient to justify incriminating conduct [62, 63, 64, 65, 66]. This means the obligation to treat patients does not by itself overrule any other legal responsibility. Otherwise, a HCP would even be allowed to treat a patient against their will [64]. Rather, conduct prohibited by the SpoPA could only be justified, if the law specifically allowed it [66]. As already mentioned, the SpoPA does not know a direct exception for medical treatments. Moreover, the specific guidelines referred to by HCPs are first and foremost private regulations and therefore do not suffice under the premise of “law” [67]. Consequently, an application of Article 14 CC is not possible.Culpability: Error as to unlawfulness (Verbotsirrtum)The Swiss anti-doping legislation is divided into a multitude of sources, the distinction between private and state measures is not always clear-cut and the SpoPA as well as its ordinance contain significant contradictions. This could be a case of Article 21 CC, stating that “any person who is not and cannot be aware that, by carrying out an act, he is acting unlawfully, does not commit an offence. If the error was avoidable, the court shall reduce the sentence.”Can we expect a HCP to be aware of the fact that prescription of a prohibited substance to a person who is not participating in regulated sports competition is unlawful according to Article 22 SpoPA? The main area of application of Article 21 is indeed within the often scattered and not easily grasped ancillary criminal law [68, 69]. According to the jurisprudence of the Federal Court, an error as to unlawfulness requires i) absence of knowledge of the unlawfulness of the behavior and ii) the error must have been unavoidable [70, 71]. A defendant already has knowledge about unlawfulness if he has a vague idea that the conduct cannot be legally accepted [72, 73, 74] – knowledge of the specific provision is never necessary [69, 75].For example, if a HCP is treating a patient with breast cancer and prescribing tamoxifen, it can be assumed that they are unaware of the potential criminal risk. And even if the HCPs were to conduct legal research, they would find no literature or jurisprudence to indicate the potential criminalization, which is why the error has to be considered unavoidable [76].Since a vague idea of unlawfulness is sufficient to exclude Article 21 CC, it cannot be precisely ascertained whether a court would accept the excuse for a HCP treating a patient using AAS. The Federal Court’s jurisdiction generally demonstrates a restrictive approach with very few acquittals based on Article 21 CC [77, 78]. Additionally, private medical provisions clearly oblige HCPs to be aware of doping risks and not to facilitate prohibited substances, even if said substance is only for private use [79, 80]. While it is clear that AAS users medically, morally, and legally deserve treatment as much as a patient with breast cancer, the HCP will be more aware of the risks under the SpoPA compared to the general public. Whether an Article 21 CC acquittal would be accepted is however of limited relevance because the whole line of reasoning has an obvious flaw: The error as to unlawfulness can only be attested to the first (few) HCPs being tried under Article 22 SpoPA. As soon as there is clear jurisprudence on the matter, HCPs cannot claim lack of knowledge regarding the unlawfulness of their actions [81]. In consequence, Article 21 CC is not a suitable long-term solution.TUE and the principle of opportunityThe therapeutic use exemption (TUE) originates from the WADA system and allows for medically indicated use or administration of prohibited substances to not be considered an anti-doping rule violation. To further look at this mechanism is a final promising approach for arguing against criminal liability of a HCP.TUE are mentioned in Article 4.4 of the World Anti-Doping Code (WADC) and specified in Article 4.2 of the WADA international standard on therapeutic use exemptions (ISTUE). The international standard sets out four conditions: i) a medical diagnosis supported by relevant clinical evidence is the trigger for the prescription of the substance, ii) on the balance of probabilities, the substance is not increasing physical performance beyond the athlete’s normal health, iii) there are no reasonable permitted therapeutic alternatives and iv) the necessity for the use is not, fully or in part, a direct consequence of prior use of a prohibited substance.As promising as the approach is, TUE originate from the system of private measures. It must therefore first be assessed whether TUE are applicable for a HCP under Swiss law.TUE in Swiss national lawThe 2005 UNESCO international convention against doping in sports obliges signing parties to implement measures which are consistent with the principles of the WADC (Article 3 of the Convention). According to Article 8 Paragraph 1, parties are obliged to restrict the availability of prohibited substances, “unless the use is based upon a therapeutic use exemption.” Switzerland implemented the UNESCO convention with the SpoPA and the Federal Council Dispatch itself references the exception for legitimate medical use [25]. However, the term TUE is neither referenced in the Federal Council Dispatch, nor in the SpoPA or its ordinance, and the legislator never followed up on this general mention of an exception. In other words, the non-self-executing [82] UNESCO Convention clearly states the exception provided by the TUE and the parallel private system applies them, but national Swiss law does not reference it. What that means for TUE under the SpoPA has not been covered by literature or jurisprudence. SSI do however not issue TUEs outside regulated sports competition.HCPs are seldomly subjected to private regulations [83]. Even if – within regulated sports competition – the athlete as well as the HCP are exculpated from all disciplinary measures, a private organization waiving sanctions can of course not have a direct impact on criminal provisions. Otherwise, private institutions could overrule the democratically legitimized criminal law. If the conduct is not considered doping under international doping regulations, it does not seem appropriate to criminalize it under Swiss law. However, without clear mention in Swiss national law, TUEs cannot directly exculpate a defendant from Article 22 SpoPA.The principle of opportunity according to Article 52 CCAlthough TUEs might not have a direct impact on Swiss criminal law, their requirements may be an indirect standard for refraining from criminal prosecution according to Article 52 CC. Article 52 is an expression of the principle of opportunity and states that “the competent authority shall refrain from prosecuting the offender, bringing him to court or punishing him if the level of culpability and consequences of the offence are negligible.” The low level of culpability and the minor consequences of the offence both need to be fulfilled for Article 52 to be applicable [84]. The level of culpability is determined according to principles stated in Article 47 CC and the consequences of the offence are assessed not only by the offence itself, but also by considering all consequences caused by the defendant [85]. According to" @default.
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W4309258210 title "The criminal liability of health care professionals treating anabolic steroid users under the SpoPA" @default.
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