DOI: https://doi.org/10.25040/medicallaw2017.01.020
Med. pravo., 2017; 1(19): 20-26
UDС: 614.251.2
ZHAPPAROVA ALʹMYRA SAHYTOVNA
associate professor, PhD, Department: Public Health, Medical law and Pharmaceutical Organization at Kazakh Medical University of Continuing Education (KMUCE)
Medical Secret
Inalienable right of the patient is the right for confidentiality. This right is inseparably linked with a duty of the medical providers to observe a medical secrecy. Information concerning patient's health, the diagnosis, the forecast and treatment of his disease as other personal information, has to remain in a secret, even after the death of the patient.
Serious impact on the development of the national legislation is exerted by the international standards in the sphere of health care. One of the fundamental international documents - the International Covenant on Civil and Political Rights— contains the norm forbidding to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation. (Art. 17).
It is specified observance of respect and protection of confidentiality of relationship of the doctor and patient also in the item 6 "12 Principles of Providing Medical Care in any National Health System".
European Charter of Patients’ Rights determines that "Every individual has the right to the confidentiality of personal information, including information regarding his or her state of health and potential diagnostic or therapeutic procedures, as well as the protection of his or her privacy during the performance of diagnostic examinations, specialist visits, and medical and/or surgical treatments in general".
The national legislation of the Republic of Kazakhstan focused on observance of the international and European standards in providing health care and has included the relevant regulations on a privacy and confidentiality in legal regulation of questions of health protection.
Item 1 of Article 18 of the Constitution of the Republic of Kazakhstan provides for the right to privacy, personal and family confidential information, protection of honor and dignity.
The Code of the Republic of Kazakhstan “On the Health of the People and the Healthcare System” of 18 September 2009 (further - Health Code) has affirmed the right for confidentiality in a number of articles. Sub-item 7 of Item 1 of Article 87 of the Health Code defines that the state gives guarantees to citizens of the Republic of Kazakhstan that information classified as medical secrecy will be preserved. General provisions on medical secrecy are stated in Article 95 of the Health Code. Medical secrecy contains information on the fact of the request for medical care, the state of health of the citizen, the diagnosis of his disease and other data received at his inspection and (or) treatment.
The patients' right for confidentiality is guaranteed not only regarding information which is contained on paper. The legislation in the sphere of the health care provides protection of personal data of patients (Art. 28 of the Health Code).
The owners or owners of information systems who have received the electronic information resources containing personal data of natural persons (patients) are obliged to take measures for their protection. Health workers have right of access to such resources only for implementation of medical activity in the cases which are directly specified in the Code about health. Such kinds of activity are:
1) medical care;
2) laboratory diagnostics;
3) pathoanatomical diagnostics;
4) activity in the sphere of preparation of blood and its components;
5) activity in the sphere of sanitary and epidemiologic wellbeing of the population;
7) educational and scientific activity in the field of health care;
8) examination in the field of health care.
With the consent of a patient or his/her legal representative, it is allowed to disclose information classified as medical secrecy to other individuals and/or legal entities in the interest of the examination and treatment of the patient and for scientific research and the use of this information for educational or other purposes (Item 3 of Art. 95 of the Health Code).
Without the consent of a citizen or his/her legal representative, the disclosure of information classified as medical secrecy is allowed in the following cases:
1) with the aim of examining and treating a citizen who cannot express his will because of the state of his health;
2) under the threat of the spread of a disease that is dangerous to other people;
3) at the request of investigation bodies, a prosecutor, a lawyer (in certain instances) and/or a court in connection with an investigation or trial;
4) while offering medical assistance to a minor or an incapacitated person, informing their lawful representatives;
5) if there are grounds to suggest that a citizen’s health was damaged as a result of unlawful actions (Item 4 of Art. 95 of the Health Code).
Disclosure of a medical secret is not only moral responsibility of the medical workers.
Chapter 12 "Medical criminal offenses" of the Criminal Code of Kazakhstan includes Article 321 "Disclosure of a Medical Secrecy". From the legal point of view it is important to establish that disclosure of the medical information took place without professional need.
Responsible for disclosure can be not only doctors, but also other medical providers to whom such information had became known during the training, execution of professional, official and other duties.
Giving information on the patient to colleagues, acquaintances, the health worker, sometimes, doesn't think that he lawfully breaks the law. Examples of such violations: giving the out-patient map by mistake to other patient; discussion between medical workers of the diagnosis and methods of treatment without professional need; reporting to the patient's visitors about his state etc. On the other side, patients not always file complaints to the police or other state bodies on illegality of such actions. According to the Committee on legal statistics and the special accounting of the Prosecutor General's Office of the Republic of Kazakhstan for the last three years no one case of disclosure of a medical secrecy has been registered in the criminal report. Nevertheless such cases take place, but resolution of conflict, as a rule, happens the conclusion of "settlement agreement".
The main doctor's rule — do no harm. And harm can be done not only by action, but also by the word. Therefore observance of a medical secret continues to remain an actual problem of medical practice.
Key words: patient, right to confidentiality, medical secret, protection of personal data, legal responsibility.
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