If secrecy is a legal imperative for doctors and other healthcare professionals, it is no less true that there are a number of situations that are the exception that confirm the general rule. In this article, Dr. José Carlos Fuertes Rocañin, specialist in Psychiatry, explains the exceptions to the obligatory nature of medical confidentiality.
What exceptions can be made to break medical confidentiality?
- When there is knowledge of the existence of a crime, an aspect that is included in Articles 259 and 262 of the Criminal Procedure Law.
- When we are in the presence of an infectious-contagious disease included in the lists of diseases of compulsory declaration (Resolution of the General Directorate of Public Health of December 22, 1981) and there is a serious risk to third parties or public health. In this case we would also be facing another legal figure which is the so-called “state of necessity” (Article 20 point 5 of the Penal Code). The code considers an exemption from liability when acting in a state of necessity, to avoid one’s own or another’s harm, provided that the following requirements are met:
- That the harm caused is not greater than the one to be avoided.
- That the situation of necessity has not been intentionally provoked by the subject.
- That the person in need does not have by his office or position the obligation to sacrifice himself.
- There is also no obligation of secrecy when testifying as a defendant, witness or expert (Articles 410, 416 and 417 of the Criminal Procedure Law and 458 and 459 of the Penal Code). In the first case, because when we are accused of a crime we can use all the “legal weapons” we have at our disposal to defend ourselves. In the other two cases because by swearing or promising to tell the truth when testifying we cannot hide information, as other professions such as ecclesiastics, lawyers and even public officials who are obliged to do so by an order of their superiors can do.