Legislation Comparison in the Sphere of Health Protection in Selected European Countries

Yuriy Yu. Shvets

Problem Statement: The Nexus of Medical Secrecy

The protection of human rights and legitimate interests has occupied mankind as a significant aspect of public life. The most important tasks of the modern state include protection of the citizen’s life and health, as well as ensuring the inviolability of private life. One of the institutions that is supposed to protect the relevant legal rights and interests is the institution of secrecy, in particular, doctor’s secrecy or confidentiality, as health protection is ensured through it.

Confidentiality as a rule should protect the doctor and the patient from unauthorized “outside intrusions” into the privacy of the individual and the treatment process. This rule guards information about the patient, w'hich the physician receives either from the patient’s mouth or as a result of examination. It cannot be shared with third parties w'ithout the patient’s permission. This rule bears the sanctity of medical secrecy in most countries’ civil or criminal codes, starting with the Hippocratic Oath. It applies not only to physicians, but also to all health professionals who have access to medical information.

An analysis of the studies and publications available shows that the emergence and development of medical secrecy has been studied by scientists like F. Walter, A. Ferguson, R Chesnokov, E. Baluchi, T. Katashina, Yu. Sergeev, A. Makhnik, D. Berg and Yu. Among the scientists who have worked on the legal regulation of medical confidentiality are Yuliya Argunova, V. Golovchenko, L. Dembo, N. Korobtsova, O. Makhnik, S. Stetsenko, J. Chevichalova, I. Shatkovskaya and others. It must be noted that the comparative aspects of the functioning and maintenance of confidentiality need further exploration, as they have not yet been sufficiently investigated.

The purpose of the chapter is to study the legislation of foreign countries regulating the provision of confidentiality in the field of health protection, including its comparative aspects.

Preview of Medical Confidentiality

The maintenance of confidentiality of information in the field of health protection is monitored medical secrecy. It concerns a kind of professional confidentiality and is an independent form of information with limited access that concerns information that is confidential and protected by law. The segregation of medical secrecy into an independent group contributes to the establishment of a unified legal regime of protection of information and its components. It is not identical to any other legal regime of information with limited access [1].

Medical secrecy has emerged and existed for a long time as an absolute phenomenon. It pertains to the secrecy from both the authorities and those close to the patient. Gradually it began to take on a partial character because the legislation of many countries at different times tended to gradually move to a system of legal provisions regarding the situations when medical information could be accessible to the public.

The subject of medical secrecy is usually the data on the health status of a patient—the diagnosis as well as the prognosis. It also considers all the information which is made available to the doctor as a result of the examination or the patient’s own words. The law defines a narrow range of situations in which a medical worker has the right to pass on medical information known to him to a third party in particular. This is especially in cases where the patient is unable to express his will independently. The situation is even more critical in the presence of a threat of the spread of any infectious disease or mass poisoning, etc.

According to the British scientist and medical ethics specialist R. Edwards, there are seven factors that ensure the essentiality of confidentiality in many areas of professional activity, especially in medicine [2, 3]. These have been listed as:

1. Confidentiality between a professional and a client (doctor and patient) is desirable because it is the confirmation of a fundamental value like privacy.

In the process of communication, some of the patient’s information may become known to the physician as he or she may sometimes need intimate information about the patient’s privacy for effective diagnosis and treatment. Ensuring that the doctor unconditionally observes confidentiality encourages the patient to be honest and the doctor ensures that the patient’s privacy is not compromised.

  • 2. Confidentiality is a condition for the protection of the patient’s social status as medical diagnosis and other medical information may stigmatize an individual. This can significantly limit the possibility of social self-assertion especially when talking about the mentally sick, people suffering sometimes from venereal diseases, genetic defects, acquired immunodeficiency syndrome (AIDS), etc. Sometimes such information tends to provoke a negative reaction and can lead to social isolation of the patient. Thus, violation of confidentiality poses a direct threat to the social status of the patient.
  • 3. Confidentiality protects the economic interests of the patient also because information about the patient’s disease can severely impair and limit the economic, social and political opportunities. It can negatively affect the patient’s business activities, promotions, etc.
  • 4. Confidentiality ensures openness in communication which is very significant between the patient and the doctor. When the patient opens up to the doctor, he or she is confident that this will not have undesirable consequences for the patient. Strict confidentiality is a guarantee for the patient’s openness given among normal professional healthcare workers. This confidentiality determines not only interests of the patients, but also of the doctors because professional success is realized not only in terms of financial compensation, but also personal self-realization of the medical personnel.
  • 5. The doctors’ ability to ensure the confidentiality of their patients’ information depends, to an extent, on their popularity and prestige. The right to choose a doctor and a medical institution rests with the patient and tends to provide an advantage to those professionals who, in addition to their professional qualities and capabilities, also meet high moral standards in terms of confidentiality.
  • 6. Effectively implementing the requirement of confidentiality ensures the trust of the patient in their relationship with their doctor which inherently is more important than honesty. Often a seriously ill person is completely dependent on the doctors and therefore must trust them and believe that they will always be guided by the patient’s interests.
  • 7. Confidentiality is therefore essential for the realization of the patient’s right to autonomy and effective control over events of his life. It coincides with the protection of privacy to guarantee the patient’s social status and economic interests. It guarantees personal freedom and minimal dependence on external forces that may be seeking to manipulate his behaviour [3].

Compliance with the rule of confidentiality is often difficult in situations of widespread threat of infectious diseases. It is vital when medical information about a patient keeps salient interests of third parties (relatives, employees) as well as in the genetic testing of an individual or when there is a threat to the health and maybe even lives of others if the silence of the doctor is breached with the information about a patient. For example, when dozens of health workers are coming in contact with a patient in a treatment facility or when relatives of a terminally ill person are informed about the patient’s state of health in an attempt to prevent speculation and rumours concerning the patient’s health.

Legislative Stipulations

The guidelines for the national legislation on the confidentiality of health information, healthcare and the functioning of the institution of medical confidentiality are mandated by international regulations in this area. The 17th International Covenant on Civil and Political Rights has made provisions stipulating that “arbitrary or unlawful interference or unlawful attacks” on the patients by countermanding the secrecy and confidentiality clause will be considered unlawful attacks on the individuals’ honour and reputation [4].

Article 6 of the European Charter of Patients’ Rights has ensured that information about their health status and possible diagnostic or therapeutic procedures, and the protection of their privacy during diagnostic examination, are governed by the right to privacy of personal information.

According to Article 8 of the Charter on the Right to Health, medical personnel should practice confidentiality (medical secrecy), which ensures respect for the privacy of their patients to guarantee the best treatment in an unbiased manner. Any dilution or breach of secrecies can only be justified for protecting the health safety and hygiene of the community. In case they become aware of an infringement of human dignity, doctors must automatically be exempt from this confidentiality.

The “right to confidentiality” is also Principle 8 of the Lisbon Declaration on Patients’ Rights. According to the content of this principle, all information that identifies a patient’s state of health, illness and diagnosis that pertains to treatment is confidential, extending even up to the time of patient’s death. In emergency the right to information can be exercised by the patient’s kin. This is largely concerning the risk of inherited diseases. Direct consent can facilitate disclosure under law. Unless the patient has explicitly consented to the disclosure, the information can be shared with the health functionaries only when it is essential. All patient identification information should be preserved and protected, as should human substances that may be a source of identification information [5].

Article 8 of the European Convention on Human Rights (ECHR) Part-1 states, “everyone has the right to respect his private and family life, his home and correspondence” [6]. In this regard, the European Court of Human Rights (ECHR) has held that

the protection of personal data—not in the least, medical data—is fundamental to the exercise by a person of his right to respect for private and family life ... Respect for the confidentiality of human health information is an essential principle of the legal systems that are parties to the ECHR ... It is necessary not only to respect the privacy of the patient, but also to maintain confidence in the medical profession and in the medical services in general.

[7]

The ECHR also notes that the disclosure of medical information “may significantly affect an individual’s private and family life, social status and employment, subjecting him to public condemnation and risk of ostracism” [8]. The ECHR judgement in the case of “I.F. against Turkey” (24209/94) noted that a person’s body is an intimate aspect of his private life. It mandates that “there is a clear connection between the right to privacy and the right to physical integrity” [9].

According to Part 1 of Article 10 of the Convention of Human Rights and Biomedicine, “everyone has the right to respect for his private life regarding information about his health” [10].

Article Recommendation №. R (2004) 10 Part-1 The Council of Europe provides that “all personal data of any individual affected by mental ailments shall be considered confidential. Such data should be collected, processed and transmitted in accordance with the rules concerning professional secrecy and the collection of personal data” [11].

Within the meaning of Part 1, Part 8, Article 4 of the The Declaration on the Promotion of Patients’ Rights in Europe, the patient’s health information should remain confidential even after the patient’s death. Patients entering a treatment and preventive care institution are entitled to expect the material conditions necessary to guarantee medical confidentiality [12].

The Convention for Protection of Individuals pertaining to Automatic Processing of Personal Data introduces additional safeguards to protect the privacy of communications regarding all forms of personal data. Thus, the following requirements are imposed on the data: Personal data are automatically processed, must be obtained and processed in good faith and legally and must be collected for purely medical and research purposes. They must be used only for the purpose for which they have been collected. They must be accurate, constantly updated and must be kept in a form that allows the ethical use of the data only. Personal data relating to health may be automatically processed only if national law provides adequate safeguards for their protection under Article 6. [13].

The Resolution №1165 (1998) of the Parliamentary Assembly of the Council of Europe stipulates public persons to be aware that the special status they have in society automatically increases the level of pressure on their privacy [14]. Therefore, a person’s presence in a position related to the execution of state or local government functions provides not only guarantees for the protection of that person’s rights, but also additional legal burdens, including in the area of health information confidentiality. In the decision “Von Hannover v. Germany,” the ECHR states: The distinction established between outstanding contemporary figures and “relatively public figures” must be clear and obvious so that in a state where the rule of law' is respected, a particular person has specific instructions as to how to behave. First of all, such persons must necessarily know w'here and w'hen they are protected and, conversely, where and w'hen interference by others is possible (para. 73) [15]. Accordingly, when establishing a balance at the national level, great care must be taken in identifying the subject of medical information [16].

 
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