Medical Confidentiality

Medical Confidentiality, a requirement imposed by legal norms or ethical motives on representatives of the medical profession—doctors, midwives, pharmacists, and other medical workers—not to disclose information concerning the state of health, personal or family life of patients, information that becomes known to medical workers by virtue of their profession, by virtue of the special trust usually placed in persons of the medical profession by patients, on the understanding that all entrusted information will not be further disclosed. M.c. is a particular type of professional secrecy, which should be understood as a similar moral or legal obligation that also applies to representatives of a number of other professions—such as: defense attorneys in court, notaries, representatives of administrative authority, postal and telegraph employees, etc., persons who, by virtue of their profession or official position, are possessors of others' secrets, a feature of these professional categories that endows their representatives with exceptional trust from all who turn to them for help or maintain business relations with them. M.c. has its roots in deep antiquity, dating back to the times of ancient priesthood (Egypt, India), when treatment was a religious act and when priests engaged in treatment surrounded their healing art with great mystery. References to the observance by physicians of entrusted secrets are found in many ancient literary monuments. Later, during the dominance of the Hippocratic medical school, freed from priestly influences and showing a high understanding of the physician's duties and his role in society, M.c. probably had other origins: it was explained rather by the general requirement of humane treatment of the patient, the requirement 'to do no harm to the patient,' i.e., not to cause him harm, understanding this to mean not only physical harm but also moral and material. In the famous Hippocratic oath, the promise to maintain M.c. is expressed in the following solemn terms: 'I swear to keep holy the family secrets entrusted to me and not to use for evil the trust placed in me.' With the development of university medical education in Europe, the Hippocratic oath became part of the faculty pledge given by young physicians before embarking on their medical career. The legislation of most Western countries contains legal norms regarding professional secrecy in general and medical secrecy in particular, considering the violation of M.c. as a criminally punishable act. The corresponding article of the German Penal Code states: 'Physicians, surgeons, midwives, pharmacists and assistants of the said categories for the unauthorized disclosure of private secrets entrusted to them by virtue of their profession, shall be punished by a fine of 1,500 marks or imprisonment up to three months.' French legislation combines into one category physicians, surgeons and other persons of the medical profession (autres officiers de sante)—pharmacists, midwives, etc.—with attorneys, notaries, court bailiffs, stockbrokers, representatives of the judiciary, police commissioners and postal-telegraph officials. All the persons mentioned, upon disclosure of secrets, possession of which they have acquired by virtue of their profession or official position, are subject to imprisonment from one to six months and a monetary fine from 100 to 500 francs. In pre-revolutionary Russia, the law recognized M.c. only as a moral obligation. The Medical Statute does not contain legally binding norms, and only as an appendix to Art. 596 of the statute is the faculty pledge given, which includes the obligation to maintain M.c. By a Senate decision (decision of the Criminal Cassation Department of the Senate, 1887, No. 23), the faculty pledge is explained as a moral obligation. And in those countries where the violation of M.c. is considered as a criminally punishable act, and in those where it is presented only as a moral requirement, the legislation equally allows an exception and provides for an exemption from the general law. The necessity of such an exemption is motivated by the fact that 'while protecting the honor, peace and interests of the suffering, in need of medical assistance, the law cannot allow that the protection of these interests be carried to the point of violating public interests. The latter call for the proper activity of the authorities in all cases where the unconditional observance of secrecy can serve as a means for concealing circumstances that by their nature have not only personal but also public characteristics' (decision of the Crim.-Cass. Dep. of the Senate, 1887, No. 23). This discrepancy between the interests of individual suffering persons and the interests of the whole society, between the duty to the patient and the interests of the collective, sharpens the question of M.c. The different attitude of the legislator toward the conflict that arises is the reason for the lack of unity in the views of legislators of different countries on the scope of the concept of M.c. and on the nature and breadth of the exceptions permitted in derogation of the requirement to observe it. The different attitude of the legislator to the question of M.c. may concern, first, the content of the concept itself, the scope and nature of the information not subject to disclosure; such, for example, is the limitation of the obligation to maintain secrecy only with respect to what is entrusted to the physician, not extending this obligation to information that could become known to the physician in the course of his professional activity and contrary to the wishes of the patient. Another point of divergence in the views of legislative bodies of various countries on M.c. comes down to the difference in defining the boundaries and limits where the public interest begins and from what moment the intervention of state power should begin in the sense of breaking the obligation. In this case, upon the arrival of this moment, the attitude of state power may be such that it either only releases the physician, freeing him from the obligation to maintain secrecy, granting him the freedom to act at his discretion, or in protection of the public interest directly imposes on the physician the obligation, under threat of criminal punishment, to report to the relevant administrative and G81 judicial authorities all information concerning the patient, the concealment of which could cause harm to society as a whole or to its individual representatives. In almost all states there is a clearly expressed limitation with regard to notification of contagious diseases. Such notification in the legally prescribed form the physician is obliged to send to the relevant health administrative authorities in cases of acute contagious diseases of an epidemic nature (such as, for example: cholera, plague, smallpox, anthrax, typhus, etc.); sometimes the law on mandatory registration also extends to non-epidemic infectious diseases (such as, for example: tbc, syphilis). In the practice of recent times in almost all countries, a tendency toward expansion is noted in the direction of widening the circle of diseases subject to mandatory registration. In most countries, the law requires the physician to report to administrative and judicial authorities, regardless of medical confidentiality, information about the patient in the presence of an accusation or suspicion of him in criminal acts. Legislation sometimes also provides for cases where the physician is obliged to notify close relatives of the danger threatening the patient, even if this involves a violation of the entrusted secrecy; the law also sometimes permits the violation of M.c. when this is necessary to protect the interests of third parties: thus, for example, the law not only permits but even ethically obliges the physician to warn about entering into marriage with a person suffering from syphilis. Beyond legal consciousness, M.c. has also penetrated into the practice of medical activity and has taken a definite place in questions of the organization of medical aid. Thus, M.c. finds reflection in the practice of insurance medicine, where the dispute over the right of the insured to free choice of physician (Germany, England) is resolved in the affirmative sense, finding to a large extent support in the reference to trust in a specific person and in the right of the patient to free choice of the person whom he considers it necessary to admit to his secret. Soviet legislation contains no direct provisions on the physician's obligation to protect M.c.; Soviet law does not recognize absolute M.c. The Soviet physician or medical worker has no right to invoke M.c. in cases when judicial or investigative authorities require from him certain information concerning the patient, or in the case of a query from leading persons and institutions (health departments). Art. 117 of the Criminal Code, providing for the disclosure by officials of information not subject to disclosure, has in mind information that is not subject to disclosure by virtue of a positive prohibition of the law or order of the proper authority or are secret by virtue of the tasks assigned to this institution. Being an object of official secrecy of the physician serving in the state apparatus, such information has no relation to medical professional secrecy.

According to the spirit of Soviet legislation, it is fundamentally impermissible to base the professional duties of medical personnel on the individual interests of a separate human being, while ignoring the general state interest. Therefore, the approach to the question of medical confidentiality in our country can only be from the point of view of state expediency, based on the class interests of the broad masses of the people, and on the general interests of public health. The question of medical confidentiality is thus posed completely differently in the USSR under state medicine than in capitalist countries under private capitalist medicine. The preservation of medical confidentiality in Soviet Russia is based on the need to maintain trust in the physician and to eliminate everything that could undermine this trust. Life practice shows that, despite the general orientation of Soviet public health toward removing the veil of mystery from everything related to medical practice, despite the widespread development of sanitary education and its role in gradually overcoming false shame, the desire to keep intimate aspects of life hidden, and often material interests, still often compel patients to conceal diseases and not seek timely medical attention. Therefore, assistance to the patient should be provided with the necessary guarantees for preserving in secret what he considers it possible to entrust only to the physician. In view of the above considerations, the preservation of medical confidentiality in Soviet Russia must be recognized as part of the professional duties of medical workers, and violation of medical confidentiality must entail responsibility in a disciplinary order (decree of January 27, 1921, Collection of Laws, No. 8) and before professional bodies, which are by law tasked with ensuring that the professional work of union members is maintained at a high level. When judging exceptions to the general rule of medical confidentiality, one must proceed from the fact that in Soviet Russia medical confidentiality is established not in the private interests of patients or in the interests of medical workers, but exclusively to protect the general interests of public health, and that the duty to protect the patient's secret ceases and is replaced by the duty to disclose information if required by the interests of public health or other interests that are to be protected by virtue of a positive rule of law or its general meaning. The category of exceptions provided for by Soviet laws includes: 1) the obligation of medical workers to report contagious diseases (Article 9 of the decree of December 1, 1921); 2) the duty of medical personnel to report poisonings, murders, suicides, and infliction of serious bodily injuries (same article of the decree of December 1, 1924); 3) the duty of the practicing physician to keep records with the name and address of the patient, diagnosis of the disease, and treatment, and to provide such records upon request by the health department, judicial, or investigative authorities (Article 7 of the decree of December 1, 1924); 4) the duty, applicable to all Soviet citizens without exception for physicians, to appear in court upon summons as a witness and to give testimony, even if the information relates to information entrusted in the course of professional secrecy (Articles 60 and 62 of the Criminal Procedure Code), and to produce upon demand of the court and investigative authorities documents and other items relating to the patient and to the secret entrusted to him (Articles 175 and 176 of the Criminal Procedure Code). As far as possible without detriment to the interests of justice, investigative and judicial authorities should take into account those interests that led to the establishment of medical confidentiality. The People's Commissariat of Health has the right and duty to ensure that within these limits these interests are indeed protected, and in necessary cases can, through communication with the relevant departments, obtain the necessary instructions in this direction to local judicial and investigative bodies. Lit.: Dembo L. I. and Valter F. A., Medical Confidentiality, Leningrad, 1926; Danilevsky V. Ya., The Physician, His Calling and Education, Kharkov, 1921.