Doctors and professional secrecy

Doctors and professional secrecy

"If the heiress of a deceased patient asks the doctor who treated him to give an opinion on the deceased's capacity for discernment when drawing up his will, does he have the right to answer her?

Stéphanie

The Criminal Code punishes breaches of professional secrecy. Under article 321, certain professions such as doctors, lawyers and clergy are bound by professional secrecy, under which they are prohibited from revealing facts learned in the exercise of their profession. In addition to criminal sanctions, doctors in such circumstances risk administrative penalties, including a fine of up to CHF 20,000.

Revealing a secret is obviously not punishable if the owner of the secret, i.e. the patient in the medical context, gives his or her consent to its disclosure. Secrecy does not pass to heirs. It follows that only the supervisory authority may, in writing, release the doctor from confidentiality in such circumstances. In Geneva, this is the Professional Secrecy Commission. That said, Geneva's health law provides that the deceased's next of kin, if they can demonstrate an interest worthy of protection, may be informed of the causes of his death and the treatment that preceded it, unless the deceased expressly objected. It should be noted that next of kin do not have direct access to the file and must designate a doctor to summarise it for them.

Only the doctor is entitled to request that his confidentiality be lifted by the Commission, to the exclusion of any other person. However, third parties with an interest worthy of protection may appeal against the Commission's decision.

In the event of civil proceedings, the doctor has a duty not to reveal secrets for which he has not been released. On the other hand, he must testify if he is released, unless he can demonstrate that the interest in maintaining secrecy outweighs the interest in revealing the truth. It should also be emphasised that, according to the Federal Court, the doctor called to testify must request that his secrecy be lifted by virtue of his obligation to collaborate.

It should be noted that the law provides for a number of exceptions to professional secrecy. For example, article 364 of the Criminal Code states that when it is in the interests of minors, persons bound by confidentiality may inform the guardianship authorities of offences committed against them.