We all have to go to doctors. The reason for seeking medical help is always not the most pleasant. But sometimes the reason is purely personal. In this case, we do not want others to know that we are seeking medical help. This may be due to both the disease itself (venereal disease, HIV infection, etc.) and the circumstances that brought us to the doctor (for example, defects in appearance, pregnancy, etc.).
First, let's look at the term “medical confidentiality”; what is it?
Medical confidentiality is information about the fact that a citizen has applied for medical care; information about the citizen’s state of health and his diagnosis; other information obtained during medical examination and treatment of a citizen.
It is important to know that medical confidentiality applies, including after the death of a person. If a patient has died, this does not mean that the circumstances of his request for medical help can be freely disclosed.
Medical confidentiality is protected by the Constitution of the Russian Federation and Federal Law No. 323-FZ of November 21, 2011 “On the fundamentals of protecting the health of citizens in the Russian Federation.” Article 23 of the Constitution of the Russian Federation establishes the right of everyone to privacy, personal and family secrets. Article 13 of Federal Law No. 323-FZ of November 21, 2011 “On the fundamentals of protecting the health of citizens in the Russian Federation” speaks of the inadmissibility of disclosing medical confidentiality.
What does judicial practice say?
Disclosure of information constituting medical confidentiality remains one of the problems of medical legislation. The degree of protection of such information is much lower than the degree of protection of attorney-client privilege. And materials from new cases continue to appear on the judges’ desks.
A striking example is the disclosure of medical confidentiality by a narcologist. The incident took place in 2014 in Ufa. According to the prosecutor's office, the medical worker, despite the prohibition established by the Federal Law "On the Fundamentals of Protecting the Health of Citizens in the Russian Federation" that the disclosure of information constituting medical confidentiality is not allowed without the written consent of the patient, at the request of his friend, gave him a certificate of diagnosis from a stranger a person who at that time was registered in the narcological office. Subsequently, this document was used to substantiate the arguments of the complaint about improper performance of parental responsibilities.
An administrative case initiated against a doctor under Article 13.14 of the Code of Administrative Offenses of the Russian Federation (disclosure of information with limited access) resulted in dismissal and a fine of 4.5 thousand rubles.
And in Krasnoyarsk, personal data was completely leaked onto the Internet. In 2017, one of the former patients of the city emergency hospital named after. N.S. Karpovich found on the official website of the medical institution his medical history and passport data with a full indication of his date of birth, last name, first name and patronymic.
According to the materials of case No. 33-3671/2019 A-198, the information was posted by a student at the Medical University named after Professor V.F. Voino-Yasenetsky, who completed her internship at the emergency hospital. At the same time, neither the patient himself nor his relatives gave consent to the disclosure of personal data. According to the plaintiff, due to the publication he had difficulties finding employment. He sued the hospital and the university for compensation for moral damage in the amount of 100 million rubles.
The Sovetsky District Court of Krasnoyarsk partially satisfied the claim. 50,000 rubles in compensation for moral damage were recovered from the hospital in favor of the plaintiff. The requirements for a medical university were denied.
So, maintaining medical confidentiality is one of the basic principles of health protection (Article 4 of Law No. 323-FZ). For non-compliance, medical workers can be brought to administrative, criminal, or civil liability.
Who is obliged to maintain medical confidentiality?
This may be news to some, but medical confidentiality is required to be observed not only by physicians (doctors or nurses), but also by any employees to whom it has become known due to the performance of work, official duties, official duties or training. Such workers include, for example, medical receptionists or hospital administrators (girls at the reception desk), lawyers, hospital accountants who also work with medical documents, inspectors and controllers, and medical students. In a word, all those employees into whose hands medical documents fall.
What needs to be done to prevent medical confidentiality from falling into the wrong hands?
Upon admission to the hospital, each patient signs a document - informed voluntary consent to medical care. As a rule, this is a standard form. It should include a section where the patient’s consent to transfer medical confidentiality to other persons is indicated. In this section, the patient either names the person to whom medical confidentiality can be transferred, or puts down about. In the second case, the doctor should not even disclose information about the patient’s health status to relatives. In the informed voluntary consent, you can make a reservation about the persons to whom medical confidentiality can be transferred after death. This is especially important when the patient is hospitalized and undergoes complex surgery.
Informed voluntary consent specifically stipulates the right of physicians to disclose medical confidentiality for the purposes of medical examination and treatment to third parties (for example, consultant doctors of other hospitals), as well as for the purpose of scientific research and publication of the results of such research.
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When does a doctor have the right to disclose medical confidentiality without the patient’s consent?
The law establishes cases when medical confidentiality is disclosed without the patient’s consent.
Without the patient's consent, medical confidentiality is disclosed:
- for the purpose of conducting medical examination and treatment when the patient’s condition does not allow expressing consent or refusal;
- when there is a threat of the spread of infectious diseases, mass poisonings and injuries;
- at the request of law enforcement agencies or the court;
- when monitoring persons with drug addiction;
- when providing medical care to a minor;
- when informing internal affairs bodies in established cases (for example, a crime has been committed against a patient (gunshot wound, injury, etc.); the patient has lost his memory and cannot identify himself and other similar cases);
- for the purpose of conducting various types of examinations;
- in order to control the quality and safety of medical activities and the expenditure of budget funds.
In addition, in the event of an unfavorable prognosis for the development of the disease, information about the state of health can be transferred to a spouse or one of the close relatives. The exception is cases when the patient has prohibited the transfer of this information to them in his informed voluntary consent, or if the patient has indicated another person to whom such information can be communicated.
In the cases mentioned above, there is no legal liability for the disclosure of medical confidentiality. In all other cases, legal liability arises for the disclosure of medical confidentiality.
What responsibility is established for disclosing medical confidentiality?
Criminal liability under Article 137 of the Criminal Code of the Russian Federation. The maximum penalty is imprisonment for up to 5 years with deprivation of the right to hold a certain position or engage in certain activities for a period of up to 6 years.
Administrative liability under Article 13.14 of the Code of Administrative Offenses of the Russian Federation. Punishment for citizens in the amount of 500 to 1,000 rubles. For officials - from 4,000 to 5,000 rubles. The case is initiated by the prosecutor.
Civil liability in the form of recovery of material damage or moral damage. Both material damage and moral damage will have to be proven in court.
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