Białystok Legal Studies vol. 25 nr 2
Protection of Patient Conﬁdentiality from a Civil Law Perspective
Abstract: The paper analyses the issue of protection of patient confidentiality by means of civil law instruments. Protection of the patient’s interests related to the preservation of medical information beyond the access of unauthorized persons can be realized primarily through the protection of the patient’s right to medical secrecy and the protection of human personal interests in the form of the right to privacy. The study presents the issue of the violation of the patient’s confidentiality and the claims to be made in connection with such violation. A wider reflection is devoted to the issue of a claim for compensation for damage resulting from the violation of the patient’s rights and the infringement of his/her personal rights, as well as the effects of the co-occurring of these claims, both in the material and procedural perspectives.
Keywords: patient, confidentiality, patient rights, medical confidentiality, right to privacy, non-pecuniary loss compensation
Page range: 11-29
Obligation or Voluntary Disclosure of Medical Conﬁdentiality
Abstract: The relationship between the patient and medical personnel, related to the satisfying of health needs, is covered by the principle of confidentiality, and the question of possible disclosure requires a statutory basis defined in a strict manner, with the principle of minimisation also imposed by law. The wording of the statutory exceptions does not imply explicitly that the absence of the obligation to maintain secrecy is tantamount to the obligation to disclose it. As a general rule, a doctor is obliged to be discreet, while with regard to exceptions only “the provision does not apply”. The question arises whether and under what circumstances this obligation to disclose exists, and whether it can be legally enforced. There are no clear obligations for the doctor, nor for the amendment of the regulations, allowing the disclosure of medical secrets after the patient’s death with the consent of a close relative, nor the release of secrets by a court in non-contentious proceedings. The place where a doctor released from secrecy should disclose it is only the court conducting a trial in a specific case, when the doctor is summoned as a witness. Medical confidentiality therefore retains its special status, but a change that allows the court to break the patient’s previous objection to it is detrimental to the most personal legal interests of persons who can no longer feel safe with their secrets. It is also a disgrace to doctors who are being urged to break their silence, contrary to fundamental deontological principles. However, the wording of the regulations allows for evasion, dictated by loyalty to the deceased patient who entrusted his/her secrets in the trust that they will be kept even after death.
Keywords: medical confidentiality, voluntary disclosure, duty of care, post-mortem opposition
Page range: 31-47
Abstract: The aim of this paper is to analyze possible legal grounds for compensation of non-pecuniary loss in the case of violation of the patient’s right to medical confidentiality, expressed in the provisions of Article 13-14 of the Act on Patient’s Rights and the Patient Ombudsman of 6 November 2008 and confirmed from the perspective of the doctor’s duty in Article 40 of the Act on Professions of Physician and Dentist of 5 December 1996. In the opinion of the author, these may be general provisions relating to compensation for the harm suffered in connection with the infringement of personal goods, i.e. Article 448 of the Civil Code in connection with Article 415 and Article 416 of the Civil Code (tort regime). This legal basis is related to the requirement of proving that the violation of the right to medical confidentiality is detrimental to the sphere of personal rights in a particular case. Another basis is the provisions of Article 4 paragraph 1 of the Act on Patient Rights and the Patient Ombudsman. Citing this legal basis is – in turn – connected with the requirement to prove a culpable infringement of a patient’s rights, which may also take place when data contained in medical records are disclosed. Apart from that, it is also possible to have an alternative concurrence of claims in the case of infringement of yet another personal good (health) in connection with the occurrence of a health disorder caused by the disclosure of medical confidentiality (Article 445 of the Civil Code).
Keywords: medical confidentiality, non-pecuniary loss compensation, personal rights
Page range: 49-63
Abstract: The paper is devoted to the conflict between the duty to protect medical confidentiality and the interests of justice in criminal proceedings and substantive criminal law. The article contains considerations on medical confidentiality in relation to the legal and social obligation to notify authorities on the commission of a criminal act, as well as the maintenance of medical confidentiality in evidence proceedings in a situation where a doctor acts as a witness (taking into account the issues of protection of the so-called psychiatric secrecy and the secrecy of the doctor assisting the accused as regards the patient’s statements concerning the commission of a criminal act). A situation in which the obligation to keep medical secrecy limits the possibility for the depositary to exercise the right of defence is also analysed. In addition to proposals for resolving the presented conflict-of-law situations, the issue of attributing criminal liability to a doctor for the offence of not informing law enforcement authorities about the commission of a prohibited act (Article 240 paragraph 1 of the Penal Code) and the offence of disclosing professional secrecy against the provisions of the Act (Article 266 paragraph 1 of the Penal Code) in the presented conflict-of-law situations is considered.
Keywords: medical confidentiality, psychiatric confidentiality, professional confidentiality, prohibitions of evidence, disclosure of professional confidentiality, denunciation, obligation to notify authorities of a crime, right of defence
Page range: 65-98
Criminal Law Protection of Medical Data
Abstract: The paper shows the areas of criminal law protection of medical data, both in the context of respect for medical confidentiality and reliability of documents. The first part presents the crime of disclosing professional secrecy, styled in Article 266 § 1 of the Criminal Code. In this respect the circle of entities which may be the perpetrators of this act and its subject matter is discussed in more detail. The next section presents criminal law protection of medical data as sensitive personal data. Article 107, paragraph 2 of the Act on the protection of personal data has been exegesisated, indicating the field of penalization of the act sanctioned in it. The last fragment is devoted to protecting the credibility of medical records. It presents the scope of responsibility for the so-called certification of the truth (Article 271 § 1 of the Penal Code). It points out the shortcomings of this provision resulting from the use of the normative clause “other person entitled to issue a document” in the description of the act. Establishing this circumstance may be difficult both for a medical officer and for the bodies appointed to prosecute crimes. These problems result from the multiplicity of legal acts, of different rank, which may create such authorization. Therefore, it has been postulated that medical-legal regulations concerning exceptions to medical confidentiality and competence to issue documents containing medical data should be tidied up and unified.
Keywords: medical confidentiality, false statements, sensitive data, medical records
Page range: 99-121
Abstract: The article covers the issue of providing information on the state of health in a situation where the patient is a minor. The child does not have actual and formal possibilities to make decisions independently. The child cannot make decisions regarding treatment, but he/she may make other decisions as part of informative self-determination. The purpose of the work is to show situations where a child, regardless of age, may agree to inform other people about his or her health. The author also presents instruments to secure the right to intimacy and privacy of minor patients.
Keywords: minor, privacy, consent, information
Page range: 123-140
Donation of Genetic Material and the Polish Law on Infertility Treatment
Abstract: Since the procedures of medically assisted procreation (such as insemination or in vitro fertilization) carried out with donated gametes have become common, the problem of protecting donors and children has arisen. Donors needed the protection of their right to respect for family and private life, whereas children needed the proper assimilation with a new family, based on social bonds. Initially, most countries introduced, as a basic rule, the principle of anonymity of gamete and embryo donation (the so-called traditional model). According to the anonymity rule, a child conceived via medically assisted procedures does not have access to information about the donor’s identity, and vice versa. However, due to the increasing importance of the right to know one’s genetic origin, many countries decided to change the law and allow the child and the donor access to the donor conception register (the so-called liberal model). The Polish Act on Infertility Treatment of 2015 adopted the traditional model, with a few modifications. Opinions on the new regulation differ, and there is an ongoing discussion in the literature concerning in particular the confidentiality of the donor’s identifying data.
Keywords: medically assisted procreation, in vitro fertilization, gametes, donor, recipient, anonymity of donation, donor conception register, welfare of the child, genetic origin
Page range: 141-164
Abstract: Over the past few years, the topic of sexual violence has repeatedly returned in social discussions. This is an issue that on one hand is shocking. On the other hand, however, this topic is associated with the emergence of interest, which causes the emergence of numerous dilemmas, questions and doubts. Analyzing the problem of sexual violence, very often (rightly) we focus on the victim. We wonder how we can give him/her advice, support and help. Securing the rights of victims is key here. The emergence of appropriate procedures is particularly important in a situation where there is information about a paedophilia crime.
The protection of children’s rights has recently been a key area of interest in Poland: media, journalists, social activists and scientists. Emerging information on the sexual exploitation of children by public trust professionals is a constant challenge that aims to increase the level of safety of the smallest citizens. In the contexts discussed here, information about the perpetrator of a sexual crime appears from time to time. Inevitably, we may encounter a question about the past of a person suspected of sexual violence. Sometimes, public opinion gets information according to which the person has undergone therapy or treatment.
This situation causes the inevitable conflict to arise in these situations. On the one hand, we have the priceless and especially well-placed child’s right to protection against violence. On the other hand, however, we can see the emerging problem of the protection of the secrecy of the therapeutic relationship, in which the participant was a person suspected of committing a paedophilia crime. This topic is of particular importance in the context of sexologists’ profession. From a legal and medical perspective, this is a special profession. Are its representatives obliged to maintain special confidentiality? Can they give up the principle of therapeutic confidentiality in certain situations? Perhaps there are situations in which they are legally obliged to the above exemptions. What should the scenario of the sexologist’s activities be like when ethical and legal norms collide?
The proposed article will attempt to answer these questions. This action will be based on a case study.
Keywords: patient rights, sexologist, professional secrecy, paedophilia
Page range: 165-183
The Right to Privacy and Medical Conﬁdentiality – Some Remarks in Light
of ECHR Case Law
Abstract: This article is devoted to a selection of ECHR judgements concerning the right of a patient to have his or her privacy respected, and the corresponding duty of doctors to keep medical confidentiality. The case law of this court confirms the fundamental importance of trust between the patient and the therapist. It also underlines that one important scope of the right to privacy is the patient’s medical data, which is subject to legal protection. The law allows for a limitation of the obligation to maintain medical confidentiality, but only on the basis and within the limits of the law.
Keywords: privacy, medical confidentiality, ECHR judgements, patient’s rights, physician’s duties
Page range: 185-197
Katarzyna Bagan-Kurluta, Urszula Drozdowska
Medical Conﬁdentiality after Patient Death in Selected Civil and Common Law Systems
Abstract: The paper presents problems related to medical confidentiality after the patient’s death. The reasons for the waiver of this secret need to be considered. To this end, the authors analysed Polish regulations of medical law and then compared them to selected European regulations: French and English law. The inspiration for describing these two legal orders were two media-highlighted cases of the publication of medical diaries after the deaths of people holding the highest state offices: Lord Moran and Dr. Claude Gubler. The first doctor published his memoirs concerning the state of health of the English statesman of World War II – Winston Churchill, while the second published his memoirs after the death of the French President – François Mitterrand. The authors describe the reaction of the law to these breaches of secrecy after the deaths of the patients, and confront them with the current regulations. The whole is crowned with conclusions resulting from the comparison of Polish, French and English law. The paper uses the dogmatic-legal and comparative methods.
Keywords: medical confidentiality, objection to disclosure, medical diaries, protection of public persons
Page range: 199-217
Medical Conﬁdentiality in French Law
Abstract: The article deals with medical confidentiality in French law. It describes its roots and current legal form based on the provisions of the French Penal Code and the Public Health Code. The article, referring to the current legal regulations and jurisprudence, characterizes the subjective and subjective scope of medical secrecy by analyzing in detail the entities obliged to keep it and its content. The text lists exceptions to the obligation of medical secrecy and attempts to characterize the concept of “common medical secrecy”. Part of the study is also devoted to the doctor’s relations with third parties and medical secrecy after the patient’s death.
Keywords: medical confidentiality, patient, exceptions to the obligation of confidentiality, common medical confidentiality, heirs
Page range: 219-231
Abstract: The high quality of pre-trial and judicial criminal procedure depends on the widespread use of data of technical, natural and other sciences for the purpose of solving crimes.
The goal of the research is the search for and determination of modern ways and means of optimizing the activity of persons directing the process, judges, prosecutors and investigators, in solving the tasks of the commission and carrying out forensic psychiatric and forensic mental health assessment in the course of the investigation of crimes.
Based on the results of this research, conclusions are drawn, and suggestions are made to improve the Criminal Procedure Law (Latvia), related to the commissioning and carrying out of forensic psychiatric and forensic mental health assessment.
Keywords: criminal procedure, Criminal Procedure Law, expert, forensic psychiatric assessment, forensic mental health assessment
Page range: 233-244
Protection of Medical Privilege in eHealth
Abstract: This article exposes legal and moral concerns regarding medical privilege and safety of patients’ medical data in association with the area of eHealth. Digital technology in modern society provides unbelievable opportunities for patients, but also challenges for their privacy. The availability and incorporation of digital technology in almost every aspect of life provides not only opportunities, but also challenges. The security of medical information in the context of medical privilege seems to be at risk, especially in the mHealth area.
This article focuses on the emerging privacy issues regarding medical privilege in eHealth. The article analyzes the framework for eHealth in the Polish legal system, with consideration of current legal acts, in relation to medical privilege and security of patients’ data, especially in mHealth and the Internet of Things. Due to the delicate nature of information about patients in medicine, it is strongly needed to balance the safeguarding of data and privacy with the development of eHealth.
Keywords: eHealth, medical privilege, data protection
Page range: 245-257
Medical Secrets vs. GDPR
Abstract: The work of the doctor and other health professionals is closely related with access to information on the health of patients. The disclosure of such information leads to many consequences. It also violates the privacy of the patient.The obligation to maintain medical confidentiality is regulated by law, and is based on the ethics of the medical profession. Regulations that regulate the principles of medical confidentiality are contained in the Act of 5 December 1996 on the professions of doctor and dentist.
Information on the health of patients is covered by special confidentiality, because these are specific data requiring confidentiality.
The information that relates to the patient and is obtained during medical work, including data on the patient’s life or property, are medical secrets. There are a few exceptions for which the doctor may be released from medical confidentiality. These include consent of the patient him/herself, consent resulting from the act and removal of medical confidentiality in the case of danger to the patient or other persons, and with the consent of public authorities.
It is very important to consider the protection of personal data, including sensitive data, which includes medical data contained in the provisions of the GDPR. This regulation comprehensively regulates the issues of personal data protection, also including medical confidentiality, by prohibiting the processing of patient data by medical entities without authorization.
The purpose of this article was to analyze the correlation between regulations relating
to medical confidentiality and the provisions of the GDPR, which are new tools for the protection of personal data. The article discusses issues regarding the subject scope of medical confidentiality, exemption from its behaviour, and liability for possible violations.
Keywords: medical secret, medical law, medical ethics, GDPR
Page range: 259-273
Abstract: The purpose of this article is to attempt to present the institution of medical law, which is medical confidentiality, to define it, to highlight the most important features, and then to contrast it with the right to medical information of a relative of a patient, as a law competing with the need to maintain medical confidentiality.
The work begins with a description of the right to privacy as a source of medical confidentiality. Then, an attempt is made to determine the subjective and objective scope of confidentiality obligations imposed on entities providing medical services, while indicating the situations in which this obligation is lifted. Medical secrecy is presented as the obligation of medical personnel reflecting the patient’s right to information, with particular emphasis on the right to access medical records. The thesis was made that the patient is the only holder of information about him/her who has the right to voluntarily extend this right to other entities by authorization. In opposition, specific legal norms have been articulated for these considerations, which give the right to medical information on the patient’s state of health to those close to him/her, without the consent or knowledge of the person concerned. Particular attention is paid to the regulations regarding the application of medical confidentiality after the patient’s death.
In the course of the argument, doubts related to the correctness of introducing the discussed provisions into the Polish legal system are indicated.
Keywords: medical secrecy, privacy, right to information, person close to the patient
Page range: 275-290
Aleksandra Cekała, Artur Nowak
Medical Conﬁdentiality vs. Press Inquiry
Abstract: Medical confidentiality is a legally regulated principle of professional ethics, which not only protects patients from the disclosure of their confidential data, but also constitutes limitations on the possibility of transferring information between healthcare providers and the press. This article has two main objectives. To show the impact of medical confidentiality on journalistic activities, in particular on the procedure of providing information to the press as part of a press inquiry. The second goal is to display to both sides of the conflict of interest certain patterns of correct behaviour, and their rights and duties towards not only each other, but also the patient.
Keywords: medical confidentiality, press laws, medical law, press, information, patient
Page range: 291-304
Page range: 307-318
Page range: 321-331