Confidentiality

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This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

The obligation of confidentiality (also confidentiality and in the StGB as a violation of private secrets ) is the legal obligation of certain professional groups not to pass on secrets entrusted to them to third parties without authorization.

Both private individuals (professional secrecy) and public officials of the state itself (so-called official secrecy ) can be obliged . Here, the true to secrecy obligated as a security clearance , to be protective as secret Lord .

In a broader sense, the duty of confidentiality is closely linked to data protection , as the duty of confidentiality not only entrusted secrets, but also personal and other data, such as. B. May be subject to trade secrets.

Reasons for the release of confidentiality can be:

  • Consent of the patient,
  • presumed consent of the patient,
  • Notification of a planned crime,
  • Exemption by court order ,
  • for your own defense,
  • Protection of higher value legal interests.

Historical

Even the oath of Hippocrates contains the medical self-commitment: "What I see or hear during the treatment or also outside of the treatment in the life of the people, I will withhold, insofar as it is not allowed to divulge it, and consider such a secret."

In ancient Rome , a rose was hung on the ceiling at gatherings, reminding those present of their duty of secrecy. The rose carved in today's confessionals serves the same purpose: “ sub rosa dictum ” - said under the rose, it must remain a secret.

Purpose and legal basis in Germany

Confidentiality in the narrower sense serves directly to protect the personal sphere of life and secrecy ( privacy ) of a person who confides in certain professional groups or certain state or private institutions. Accordingly, confidentiality protects the right to informational self-determination , which in Germany has constitutional status . The right to informational self-determination as an expression of the general right of personality was developed through constant jurisprudence of the Federal Constitutional Court from Article 1, Paragraph 1 in conjunction with Article 2, Paragraph 1 of the Basic Law and first formulated in 1983 in the so-called census judgment.

In Germany, the legislature has protected the obligation of confidentiality with the strongest means at its disposal, namely the threat of a fine or imprisonment in Section 203 of the Criminal Code (violation of private secrets).

In addition, a duty of confidentiality can result directly and indirectly from civil law contracts as a secondary obligation. There is a duty of secrecy for employees as a secondary obligation from the employment contract with regard to company secrets in accordance with Section 242 of the German Civil Code ( good faith ).

Public officials, such as - German - civil servants , are obliged to maintain confidentiality based on Section 67 of the Federal Civil Service Act (BBG) and Section 37 of the Civil Service Status Act (BeamtStG). In German social law , § 35 SGB ​​I protects the so-called social data , that is the information that is collected by the service providers of the Social Security Code about the insured and benefit recipients. The further handling (collection, processing, storage, transmission) with this information governs § 67 et seq. SGB X .

For the area of ​​the Catholic Church, the church code Codex Iuris Canonici (CIC) protects the personal right to the protection of privacy in Canon 220. For employees with service contracts according to the employment contract guidelines of the German Caritas Association (AVR), § 5 AVR regulates the confidentiality obligation as a special service obligation.

Civil Legal standards for certain professional groups (professional regulations) govern the confidentiality obligation on their part, for. B. for German lawyers § 43a Abs. 2 Bundesrechtsanwaltsordnung ( Federal Lawyers' Act ) , further specified in § 2 BORA. For doctors, this results from Section 9 of the (model) professional code. The statutory duty of confidentiality for tax advisors is laid down in Section 57 (1) StBerG .

The medical secrecy (also: medical secrecy or medical confidentiality ) ends after § 203 para. 4 of the Criminal Code is not the death of the patient (Mr. secret) .

Indirectly, confidentiality also serves the functionality of certain professions themselves.

  • Example: If the advice B. is dependent on a relationship of trust through a psychological psychotherapist , this can only arise if the patient can rely on the fact that the information entrusted to him will not be passed on without authorization.

Group of persons subject to confidentiality under Section 203 of the Criminal Code

Are obliged to secrecy acc. Section 203 of the Criminal Code, in particular, members of the following professions:

The person who keeps the secret is always confidential within the meaning of Section 203 StGB, not the organization in which he works. The criminal secrecy can not be canceled by transfer from superiors or attenuated because the right to issue an employer or government leader can not override criminal provisions.

Due to the prohibition of analogy in German criminal law, the list in Section 203 of the Criminal Code is exhaustive and cannot be expanded beyond the wording to include persons not named there by way of interpretation . In order to expand the group of persons subject to confidentiality , an express change in the law would rather be necessary with regard to the criminal law requirement of certainty . For the socially helping professions, for example, qualified pedagogues and educators are not included. You are therefore not subject to the threat of punishment under Section 203 of the Criminal Code, but you have to observe the confidentiality obligation based on (labor) contractual or other civil law regulations. A violation of these persons therefore only has civil and professional consequences, not criminal law.

Even priests and pastors are therefore not subject to the threat of punishment under Section 203 of the Criminal Code. With them, sanctions under canonical law may apply (see in particular: Confessional secrecy ).

What is confidentiality?

There is a regular obligation to maintain confidentiality with regard to what has been entrusted to the obligated party in his professional capacity or has become known in another way.

In the medical field, for example, this applies to all personal data and facts such as B .:

  • the fact that a treatment relationship with a certain person exists, has existed or is planned,
  • the type of injury or illness,
  • the course of the accident, course of illness, etc.,
  • the results of the examination, diagnosis and (suspected) diagnosis,
  • the measures taken and
  • all other information that became known to the helper during the treatment relationship (e.g. living and living situation, addiction , sexual orientation, financial situation , physical hygiene ).

This applies insofar as the details allow conclusions to be drawn about a specific, identifiable person, and also beyond the death of the patient / client.

To whom does the duty of confidentiality apply?

The duty of confidentiality applies to everyone. These are z. B. also relatives of a person concerned (including minors, whereby age and discernment are to be taken into account), professional colleagues and superiors of the person subject to confidentiality, insofar as they are not involved in processing the specific case of the person concerned, their own friends and family members, the mass media and depending on legal regulations: police , public prosecutor and court .

In many cases , the duty of confidentiality is accompanied by a right to refuse to give evidence in court , to which the obliged entities can invoke (in Germany e.g. § 53 StPO in criminal proceedings or § 383 ZPO in civil proceedings).

Confidentiality and duty of disclosure

The duty of confidentiality only prohibits the unauthorized disclosure of secrets of others. In certain cases, the disclosure may therefore be justified .

A distinction must be made between the conditions under which information may and must be given. For example, if

  • ... the express consent of the person concerned is available
Examples: In the treatment contract that was concluded with the doctor or the hospital, the patient consents to personal data being passed on for billing purposes.
Private health insurances and life insurances usually demand a general release of all treating doctors from the obligation of confidentiality in the insurance application. However, the transmission of personal data must be limited to what is necessary for this. According to the Federal Constitutional Court , a release from the obligation to secrecy must initially be limited to preliminary information with which the insurance company can determine which information is actually relevant for examining the benefit case. This strengthened the policyholder's right to informational self-determination.
  • ... an implied (tacit or presumed) consent is given
Examples: The ambulance service finds an unconscious patient who was allegedly the victim of a robbery. The police can be contacted.
As part of the handover in the hospital, patient data is passed on to the doctors and nursing staff in the follow-up service.
Example: Hospitals have to provide the health insurance companies with certain personal data of a patient ( Section 301 SGB ​​V). There are further disclosure obligations towards the medical service of the health insurance .
If a higher value legal asset is currently at risk, the breach of confidentiality is not unlawful. A revelation of the entrusted secret is only permitted if a weighing of interests shows that the breach of the secret is appropriate and suitable to avert the impending danger AND the legal interest to be protected outweighs the impaired legal interest (breach of trust).
Example: If a social worker is publicly criticized in the press, a breach of confidentiality may be justified. The weighing of interests must lead to the result that the protection of the public image of the authority and the social worker justifies a breach of trust. This is especially true if the claims are false. The social worker is only allowed to disclose the data that restore the public image ( principle of proportionality ).
Further examples: A doctor has to defend himself in criminal proceedings against suspected malpractice , he has to fend off claims for damages under civil law or enforce his own fee claim because the patient does not pay voluntarily.
According to Section 34 of the Criminal Code, there is generally no obligation to disclose, only an authorization to disclose. In exceptional cases, however, there may still be an obligation to disclose if the life or health of a person is in acute and immediate danger and disclosure can prevent further damage.
Example: The district social worker of a youth welfare office finds life-threatening neglect in a child during a home visit . The child's parents are unable to look after the child because of acute drug intoxication . The rescue service and possibly the police must be called.
In this case there is an obligation to disclose (for exceptions see § 139 StGB).
Example: if the doctor receives information about a future risk to other people while treating a patient, for example because the patient announces a murder , he must pass this knowledge on.

Since the pilot suicide on the Germanwings flight 9525 in March 2015, there has been a discussion in the German media about easing medical confidentiality vis-à-vis the responsible flight control authorities. In view of the already existing legal situation, plans to break medical confidentiality in the context of the fight against terrorism are countered with weighty legal arguments.

Sanctions

A violation of the duty of confidentiality is punishable under the conditions of § 203 StGB with the threat of a fine or imprisonment for up to one year. The professional law of certain professions threatens in certain cases with the prohibition of practicing the profession , e.g. B. in Section 3, Paragraph 3 of the Psychotherapists Act . Then there are the professional sanctions, such as fines. The breach of contractual obligations z. B. from an employment or service relationship can lead to sanctions under labor law up to and including termination; a contractual penalty can also be provided for in the employment contract . The injured party may also be able to assert claims for damages .

See also

literature

  • Katrin Hawickhorst: Disclosure rights and obligations of the attending physician if they become aware of child abuse and child abuse. ZMGR 6/2012; P. 400 ff.
  • B. Müller: Duty of confidentiality, powers and obligations of the doctor to disclose, in particular to the statutory health insurance
  • M. Parzeller et al .: Medical confidentiality . Deutsches Ärzteblatt 102, February 4, 2005, B237-245
  • M. Weber, U. Böhm and W. J. Kleemann: Information, consent and confidentiality: general and special pediatric aspects . Pediatric and Adolescent Medicine 5, 2005, 254–258
  • J. Peitz, Obligation of Doctors, Psychologists and Members of Other Health Professions, in Patermann et al. "Handbook of fitness to drive", 2015, Kirschbaum Verlag, Bonn

Web links

Wiktionary: confidentiality  - explanations of meanings, word origins, synonyms, translations
Wiktionary: unauthorized  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Andreas Staufer: What can an emergency doctor say? In: The emergency doctor . tape 32 , no. 01 , February 1, 2016, ISSN  0177-2309 , p. 16-19 , doi : 10.1055 / s-0041-111298 .
  2. ↑ Medical confidentiality ( memento from May 9, 2016 in the Internet Archive ) Berlin Medical Association, 2008
  3. ↑ Jürgen Thorwart: The right to informational self-determination as an expression of the basic right to free development of the personality cited from: Lenckner in Schönke / Schröder 2006, § 203 RN 31-33
  4. ↑ BVerfG, decision of July 17, 2013 - Az. 1 BvR 3167/08
  5. ↑ Flight 4U9525: Germanwings crash sparked discussion about confidentiality FAZ , March 30, 2015
  6. ↑ Ansgar Siemens, Jens Witte: Ill pilots: The most important thing in the debate about medical confidentiality Der Spiegel , March 30, 2015
  7. ↑ Annelie Naumann, Gesche Wüpper, Christine Kensche: When in doubt against confidentiality Die Welt , March 13, 2016
  8. ↑ De Maizière apparently wants to relax doctor confidentiality. In: heute.de. August 10, 2016, archived from the original on August 11, 2016 ; accessed on August 11, 2016 .
  9. ↑ Sebastian Krahnert: Current Debate: Softening Medical Confidentiality? Krahnert Medical Law, August 11, 2016, accessed on August 11, 2016 .