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.
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 Paragraph 1 in conjunction with 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 Criminal Code (violation of private secrets).the
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 the German Civil Code ( good faith ).
Public officials, such as - German - civil servants , are obliged to maintain confidentiality based on Federal Civil Service Act (BBG) and Civil Service Status Act (BeamtStG). In German social law , 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 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 Abs. 2 Bundesrechtsanwaltsordnung ( Federal Lawyers' ) , 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 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.Criminal Code, in particular, members of the following professions:
- Doctors , dentists , veterinarians , pharmacists and members of other health professions whose practice requires state-regulated training. This does not include alternative practitioners , because their training (and qualification) is currently (2018) not regulated by the state,
- the professionally active assistants of doctors, dentists, veterinarians, pharmacists and other medical professions as well as the people who work for them in preparation for the profession, such as B. Health and nursing staff , geriatric nurses and trainees as well as employees of the emergency services. In medicine, the non-confidential assistants include all employees who assist the treating doctor in any capacity and thereby gain knowledge of the person being cared for. The group of auxiliary persons falling under the obligation of confidentiality is broad. This includes B. also laboratory staff, insofar as they carry out "an activity directly related to medical treatment" or interns in the course of a university course and employees of a private medical clearing house (Section 203 (1) No. 6 StGB),
- Professional psychologists with a state-recognized final academic examination,
- Lawyers , patent attorneys , defense lawyers ,
- Tax consultants , notaries , auditors ,
- Marriage, family, upbringing or youth counselors as well as addiction counselors in a state-recognized counseling center ,
- Members or agents of a recognized pregnancy conflict counseling center ,
- state-approved social workers and social pedagogues ,
- Employees of a private health, accident or life insurance company ,
- Officials and European officials (officials of the EU ) with regard to official and official secrets known to them ,
- Person who performs tasks or powers under the law on staff representation ,
- the data protection officer for the above-mentioned group of people.
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. StPO in criminal proceedings or 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
- ... there is a legal obligation to provide information , e.g. B. towards the social service providers or according to the Infection Protection Act
- ... social data that have been entrusted to an employee of a public youth welfare agency for the purpose of personal and educational help are passed on by them under the conditions of Section 65 of Book VIII of the Social Code .
- ... there is a justifying state of emergency according to StGB.
- 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.
- [...] a serious criminal offense is planned , which is notifiable according to StGB.
- In this case there is an obligation to disclose (for exceptions see StGB).
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.
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 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 .
- Anonymous birth
- Legal confidentiality
- Right to refuse to testify
- Banking secrecy
- Confessional secret
- Confidentiality agreement
- Self data protection
- 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
- Thomas Hochstein: Confidentiality , September 6, 2014
- Jan Köpke: The importance of Section 203, Paragraph 1, No. 6 of the Criminal Code for private health insurers, especially when it comes to internal organizational secrets (PDF file; 1.4 MB). Tübingen, Univ.-Diss., 2003
- Jürgen Thorwart: Legal, practical and psychodynamic aspects of professional secrecy , January 2016
- Ricarda Christine Schelzke: The iCloud as a danger for the lawyer? HRRS , March 2013
- 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 .
- Medical confidentiality ( memento from May 9, 2016 in the Internet Archive ) Berlin Medical Association, 2008
- 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
- BVerfG, decision of July 17, 2013 - Az. 1 BvR 3167/08
- Flight 4U9525: Germanwings crash sparked discussion about confidentiality FAZ , March 30, 2015
- Ansgar Siemens, Jens Witte: Ill pilots: The most important thing in the debate about medical confidentiality Der Spiegel , March 30, 2015
- Annelie Naumann, Gesche Wüpper, Christine Kensche: When in doubt against confidentiality Die Welt , March 13, 2016
- 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 .
- Sebastian Krahnert: Current Debate: Softening Medical Confidentiality? Krahnert Medical Law, August 11, 2016, accessed on August 11, 2016 .