Commentary on the Code of Medical Ethics and Deontology

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Chapter IV: Professional Secrecy of the Physician

It has been said that the doctor-patient relationship is the meeting of a trust with a conscience. This is meant to express the astonishing but ordinary fact that one man places his life, his health and even his reputation in the hands of another. The patient sometimes makes confidences to the doctor that he would not make to anyone else, and tells him things that are too intimate or too shameful, which, if disclosed, would ruin his good reputation, his social credit or his financial security. If the patient were not sure that his confidences would always be protected by professional confidentiality, he would either not go to the doctor or would withhold information of decisive importance to the doctor.

The Hippocratic Oath already included the duty of medical secrecy: "I will keep silence about everything that I see or hear, in my enquiry or outside it, which concerns the lives of men and which should not be divulged. I will keep secret all that would be disgraceful if it were known to the people". In modern times, the Declaration of Geneva obliges the physician to promise on his honour to "keep and respect, even after the death of the patient, the secrets which he has confided to me".

The conditions of contemporary medical internship , where patients are cared for in large institutions by several doctors, and followed through administrative functions, management and attendance involving many different people, are not very conducive to the jealous guarding of confidentiality. In particular, the computer processing of medical data , which provides so many advantages for health management , carries risks of physical insecurity of the stored data and invasion by outsiders.

Moreover, we live in an information-hungry society and the social media speech , who wish to report on the health of celebrities, spare no means to circumvent the barrier that protects the privacy of the sick.

If only for these reasons alone, it must be acknowledged that the ethics of secrecy is more important today than ever.

article 16.1. Physician confidentiality is inherent to the practice of the profession and is established as a right of the patient for his or her safety.

As already mentioned above, professional confidentiality is crucial for a sincere and effective doctor-patient relationship. The speech of intimacy staff - the pathographic data , the way of reacting to the disease with its fears and anxieties - is what most radically differentiates human medicine from veterinary medicine. This speech would not be possible without the security provided by secrecy, which is why secrecy is said to be inherent to the practice of the medical profession.

Modern society is confronted with a certain ambiguity about medical confidentiality. On the one hand, the right to privacy has been affirmed in our times, i.e. the right, incorporated in all modern Constitutions, that everyone has to determine his or her privacy and the Degree in which he or she wishes to share it with others. But, at the same time, ours is an information-hungry society populated by "transparent" citizens, where medicine - its successes and failures - is of interest to everyone. The media of speech want to report on the achievements and misfortunes of doctors and the illnesses of celebrities. There are social movements seeking the abolition of all confidential information (political, military, economic, in medicine too), openly confronted with opposing movements seeking to reinforce the protection of privacy Constitutional Law .

The article recognises the patient's right to privacy, to which the doctor corresponds with his duty of confidentiality. This is also established in the General Health Act, which, in its article 10.3, affirms the patient's right to "the confidentiality of all information related to their process and to their stay in public or private health institutions that collaborate with the public system". However, there is a lack of specific legislation on medical confidentiality in Spain. The Spanish Constitution guarantees, on the one hand, "the right to honour, privacy staff and family privacy and to one's own image" (article 18.1). On the other hand, it refers to professional secrecy in other articles. In 20.1.d), it states, in relation to the right to freely communicate or receive truthful information by any means of dissemination, "that the law shall regulate the right... to professional secrecy in the exercise of these freedoms"; in 24.3, it establishes that "the law shall regulate the cases in which, on the grounds of kinship or professional secrecy, there shall be no obligation to testify about allegedly criminal acts". And, although Law 1/1982 has developed the content of article 18.1, without referring at any time to medical secrecy, neither the Government nor the Parliament has undertaken the difficult task of regulating professional secrecy.

article 16.2. Professional secrecy is binding on all physicians regardless of the modality of their practice.

In all meeting doctor-sickness, the doctor is bound by his or her secrecy. There are no exceptions to this rule based on the different types or modalities of practice: in private or public medicine, in an emergency department or in an inspection office, in a prison or on board a ship, in school or in sport. No true medicine is possible without the confidence that secrecy will be maintained. In this, medicine is on a par with the other great professions obliged to guard confidentiality: neither the priest, nor the lawyer, nor the doctor could fulfil his mission statement if those who come to him did not know that the inviolability of the secrecy of the confidences confided to him was assured.

Doctors who have contracted their services with an organisation in order to provide medical care to those who depend on them (doctors at business, doctors in the armed forces, prison doctors, inspectors, etc.) have, like all doctors, the obligation to be independent, in order to look after the interests of their patients first and foremost. This independence obliges them, in particular, to maintain secrecy vis-à-vis the hierarchical superiors of their patients. article When they have to communicate their administrative findings to these managers (sick leave, sick leave, special medical needs, entitlement to compensation, etc.), they shall merely state that, in their opinion, the patient should be entitled to leave for such a period of time, that he/she is Pass for such work activity, or that he/she meets the medical requirements to obtain the benefits provided for in such requirements of the Regulations, and so on, without disclosing the diagnosis of the case.

article 16.3. The physician shall keep confidential all that the patient has confided to him/her and all that he/she has learned in the course of his/her professional practice.

The area which is protected by confidentiality is indicated here: what the doctor has seen, heard - the patient's words and gestures - or what he has deduced from his conversations with the patient, from visits to the patient's home, from the data provided by relatives and colleagues. The physician may discuss some of these things with colleagues in a strictly professional context, as article 17.1 makes clear. But he or she is not permitted to communicate the patient's confidences to those closest to the patient (a spouse, or a friend, or a colleague who is not involved in the patient's care). If you need to ask a colleague for guidance or committee, you should do so without revealing the identity staff of the case.

The requirement of this article contrasts sharply with the carelessness shown by many doctors: conversations in lifts and corridors, which can be overheard by outsiders; abandoned medical records or computer screens with data compromised, which can be snooped on by strangers. These are admittedly unintentional oversights and difficult to avoid, but ethical respect for people does not allow any relaxation of the discipline that doctors and nurses must impose on themselves to avoid harming their patients. Physicians must act in such a way that they can provide, in all the circumstances, a reasonable justification for their conduct when they have statement confidential information about their patients to another.

article 16.4. The death of the patient does not exempt the physician from the duty of confidentiality.

Secrecy even after the patient's death is enshrined in authoritative ethical texts such as the Declaration of Geneva and the London Code. People have a right to a good reputation and to be free from defamation, not only in life but also after death, and not only against strangers but also against themselves. Therefore, the physician is not relieved of his duty, even if the patient has authorised him to do so.

Disclosure of post-mortem secrecy may arise in the context of inheritance law disputes when, for example, pressure is brought to bear on the doctor to declare the testator incompetent and thus invalidate a will. Also when one wants to know the medical history of great personalities, as their pathobiography can be of great interest to historians. There is no agreement on the ethical correctness of such disclosures, as there are imperatives of justice and legitimate historical research that can prevail over the duty of confidentiality. As a sick person, the public figure occupies a special position, as is shown by the respected and respectable tradition of disclosing the report when the great figures of politics, culture and religion fall ill. But these disclosures must be made with the respect due to every human being: the doctor cannot, in conscience, profane the report of any of his patients.

article 17.1. It is the duty of the physician to demand absolute discretion and scrupulous observance of professional confidentiality from his staff. He/she must make them aware that they are also obliged to observe professional secrecy.

The obligation of confidentiality extends to all persons assisting the physician at work: nurses, secretaries, assistants, medical or nursing students. Those who surround the physician while attending to his patients are obliged to keep silent about what they have seen, heard or deduced. All of them, on the occasion of their work or apprenticeship, may learn intimate details about the patient.

The doctor will have to explain to them what their obligations are and how they have to fulfil them. To this end, he or she should take every opportunity to do so, whether it be through small oversights in the daily internship : a story left in a corridor, an indiscreet conversation that might be overheard by a stranger, a comment in the corridor or on the cafeteria. issue The doctor cannot allow discipline to relax, no matter how difficult it may seem and no matter how many people come into contact with the patient and his or her clinical documentation. In order to encourage compliance with the duty of confidentiality, it is always advisable to include, among the conditions required for continuity in the work, an explicit and serious commitment to maintain confidentiality.

Physicians are obliged to set a good example to their staff. They must never allow compromising details about their patients to be discussed in front of strangers. In hospitals, especially in teaching hospitals, there should be more talk of confidentiality. The patient who allows students to study and explore him deserves a special appreciation of his personal and human values, which should be reciprocated by medical trainees.

article 17.2. In the practice of team medicine, each physician is manager of the totality of confidentiality. It is the duty of the management of the institution to provide all necessary means to make this possible.

The practice of team medicine makes it convenient, and even necessary, to keep medical records on a central file . This is often the case in hospitals, clinics and outpatient clinics. When necessary, the clinical documentation is removed from the file , which remains available for examination by the doctors involved in the same patient attendance .

Each doctor is therefore manager of the totality of confidentiality. This rule shows the special care that must be taken to preserve confidentiality in the complex conditions of team medicine, whether at attendance or at research in clinical practice or epidemiology. The work in a team or in a hospital does not authorise a disregard for confidentiality.

Physicians should demand from those who run the hospital that physical systems and functional security rules be put in place for the custody, access and circulation of records. Withdrawing records from file is the prerogative of individuals, not the anonymous attribute of a group.

It is the duty of the directors of health care institutions to establish an internal disciplinary procedure to sanction infractions of the subject, as well as to organise a very strict separation between clinical documentation, to be used only by physicians at attendance for patients, and documentation management assistant, which may be created and analysed by staff non-physicians. The medical record may never be used as an instrument of accounting or labour control.

article 18. A physician shall, with discretion, only to whom it is necessary to do so, and within its just and restricted limits, disclose confidentiality in the following cases:

1. By legal imperative. However, in his statements before the courts, he must assess whether he is nevertheless bound by professional secrecy to reserve data . If necessary, he should seek advice from high school.

2. When the physician is unjustly harmed by a patient's confidentiality and the patient is the wilful perpetrator of the harm.

3. if the silence would result in harm to the patient himself or to other persons, or in collective danger.

4. In notifiable diseases.

5. When the physician appears as a defendant before the high school or is called to testify in subject disciplinary proceedings. However, he/she shall have the right not to disclose patient confidences.

Medical confidentiality, while a fundamental duty of the physician, is not an absolute obligation. It has always been recognised that, over and above the good of confidentiality, there are other superior goods to which it must yield. These are always imperatives of force majeure. Thus, even in the case of the derogations from medical confidentiality listed in this article, physicians must act as jealous guardians of their patients' confidences. He shall always be discreet, sparing, restrictive in his declarations, which he shall make exclusively to those who are graduate authorised to receive them and to make proper use of them.

1. Legal derogations from secrecy.

The obligation to maintain secrecy may collide with the legal mandate to denounce. This is established in article 576.1 of the Penal Code, which states: "Physicians who, noticing signs of poisoning or other crime in a person they are assisting or in a corpse, do not immediately report it to the authorities... shall be punished (...)". The duty to report is not foreign to the Code: the Code imposes it, for example, in article 30.2. Moreover, the doctor may be summoned to testify by the judge, as a witness or expert witness, and must then take into account the sometimes conflicting duties that arise in his double capacity as doctor of his patient and partner of justice.

In the face of legal derogations from medical confidentiality, deontology affirms that there are areas of privacy, which by their very nature or because they do not contribute to the clarification of the judicial question, about which the physician cannot be compelled to testify. Even under the mandate and protection of the law that exempts him from his duty of confidentiality, the physician will always be guided in his disclosures by the guide of his own conscience. And even if he is testifying under oath, he may refuse to answer certain questions if he believes that what he is asked is irrelevant or damaging to the reputation of his patient, for, while testifying in court, the physician is still obliged not to harm his patient.

When the physician considers that he/she can, in conscience, answer the questions put to him/her, he/she will do so with the maximum of care reservation; that is, he/she will refuse to declare those points that he/she considers that he/she must remain silent out of respect for the dignity staff of his/her patient. He shall limit himself to answering briefly and essentially the relevant questions. In case of doubt about the limits of what he/she must keep quiet and what he/she may say, he/she will first ask committee to high school , which, through its legal advisory service and its Ethics Committee, will provide him/her with the necessary technical and moral support financial aid .

It is important to remember that some areas of privacy are inviolable. If the physician is not particularly cautious in what he or she says, he or she could find himself or herself involved in a defamation suit. He or she will therefore have to defend himself or herself against leading questions from lawyers who seek to gain advantage for their side by damaging the reputation of certain individuals.

2. The doctor's defence staff against injustice caused by the patient.

In the past and in some places, secrecy was regarded as an absolute duty of the doctor, to the extent that the doctor, unjustly accused or wronged by his patient, had, for the sake of secrecy, to renounce defending himself. A malicious or resentful patient could abuse the doctor to his advantage, because the latter, gagged by secrecy, had to remain heroically silent. Today, a patient who inflicts an injustice on the doctor is considered to destroy the trust that should govern the doctor-patient relationship, and his attempt to hide behind the deontological obligation of secrecy is, in essence, blackmail. The doctor's silence would then be a kind of complicity against himself and, by virtue of the principle that he who remains silent, gives consent to moral extortion.

Physicians must defend themselves, but their self-defence must be a just defence: they must act with the utmost discretion, in the appropriate venue, within fair and restricted limits. In this difficult status, the physician must not lose his or her temper: he or she knows that illness can damage patients' judgement, so he or she must be sympathetic and circumspect. He will not divulge pejorative details of his patient to the public or to the judiciary in order to discredit him as a person. He must balance his advocacy with the deontological respect he owes to himself and to his patient.

3. The protection of the patient's own life and safety or that of others, and the avoidance of collective danger.

Occasionally, physicians may, in the course of their professional practice, discover that their patients have the purpose intention to injure or kill themselves or others, because the patients reveal their intention to mutilate or commit suicide, to kill a certain person or to commit an attempt on their lives. Such a status presents the physician with the need to assess objectively the seriousness of such threats and to decide in conscience when and under what conditions to break the silence in order to prevent the life of others from being threatened. The Code states that the physician must not remain silent and that, within the limits set by the head of article, he or she will denounce the status.

In the same way that a doctor is released from secrecy in order to defend himself personally against an unjust injury, he can testify in defence of an innocent person when, if he does not do so, he could be convicted.

On reporting cases of torture and cruel, inhuman or degrading treatment or ill-treatment, see, respectively, Articles 30(1) and 30(2).

4. Mandatory reporting of certain diseases.

Physicians are often faced with a conflict between, on the one hand, the legal obligation to report cases of infectious diseases in order to protect public health and obtain important epidemiological information, and, on the other hand, the preservation of confidentiality. This conflict is particularly acute in the case of certain diseases that are socially stigmatised, such as sexually transmitted diseases.

There are usually no ethical conflicts in the reporting of the vast majority of these diseases, nor when patients agree to receive appropriate therapy: it is sufficient in such cases to report them to the health authority by means of a numerical declaration, on a form that does not contain the patient's identification data staff or in which these data are indicated on core topic. Problems arise when, due to the patient's refusal to be treated or special epidemiological circumstances (high virulence, resistant strains, high contagiousness), the risk to public health is extraordinary. The health authorities must take measures that require knowledge of who the contagious subjects are. The physician will try to persuade the patient to accept treatment and to disclose the identity of the person who may have transmitted the disease and to whom the patient may have transmitted it. If the patient refuses to do so, the physician will report the case to the health authorities: his duty of confidentiality yields to the higher imperative of protecting public health.

5. Medical secrecy and discipline collegial.

When the doctor has to testify, as a defendant or as a witness, before the board Directive of the high school or before the Judge trainer of a deontological transcript , he/she cannot hide behind secrecy in order to conceal information essential for the resolution of the case. His declaration is a necessary prerequisite for the successful preliminary assessment of disciplinary proceedings and for their final substantiation. Such cooperation of the accused is not only a duty, but also and above all a right. In the collegiate disciplinary system, one of the guarantees required by the legal security of the individual is that no one may be prosecuted and tried without being heard. The member who is alleged to have violated the discipline is the first interested party in the clarification of the facts and must therefore cooperate in the investigation of his or her case. Members who have been called as witnesses shall answer the questions put to them truthfully and with respect for the accused colleague. The actions of the body trainer, made up of members who are also obliged to keep the secrecy of the investigation secret, never constitute an attack on confidentiality, since, as the text of article points out, the intimacies revealed by patients are of no significance in deontological files.

article 19.1. Medical informatisation systems shall not compromise the patient's right to privacy.

This article establishes a basic rule that comes into force when the file of data is subject to computer processing, whether for healthcare, administrative control or research purposes.

The computerisation of the medical file , whether that of a single doctor, a team of doctors or an institution, has such great practical advantages that, with time and technological progress, its employment by the doctor will become very common, even the norm. In view of these advantages, the World Medical Association ( association ) promulgated, as early as 1973, a statement on the use of computers in medicine, in which it emphasised the need for physicians to take care to maintain the secrecy, security and privacy of their patients' information stored on the computer. For its part, article 8th of the Principles of European Medical Ethics states, among other things, that: "Physicians may not cooperate in the creation of electronic medical databases data that may jeopardise or undermine the patient's right to privacy and the protection and security of his or her private life".

Thus, doctors cannot use computerised systems in which confidentiality is not guaranteed. Until such time as legislation is passed in Spain to develop the contents of article 18.4 of our Constitution ("The law shall limit the use of computers to guarantee the honour and privacy staff and family of citizens and the plenary session of the Executive Council exercise of their rights"), we are bound by the rules of the Convention for the protection of individuals with regard to the computer processing of personal data data , which was promulgated by the committee of Europe in 1981 and which Spain signed in 1982 and ratified in 1984.

Physicians will require of themselves some essential ethical requirements requirements . He/she will bear in mind that all medical file , whether on paper or electronic basis, must be protected against curiosity or malicious invasion by outsiders. Remind the technicians who assist in programming or maintaining file that they are obliged to maintain secrecy about what they may learn in the course of their services. Physicians should be very careful to keep data secret, especially if it involves potentially compromising information; and they should take care to ensure the quality of the equipment, software, and materials they use, since their failure can have serious and even catastrophic consequences for the care of their patients.

When the responsibility is shared by several doctors who have access to the same computerised file , as in the case of practices at group, health centres, outpatient clinics or hospitals, the doctors must establish very strict control rules with the computer technicians at agreement to regulate who can access the entire file or which parts of it, who is authorised to enter, modify or destroy data, and many other things. The danger of unauthorised intrusions by unauthorised persons who might pry into or tamper with the stored data must be minimised.

article 19.2. Any data bank that has been extracted from medical records shall be under the responsibility of a physician.

The European Principles of Medical Ethics state that "Any computerised bank of clinical data shall, out of respect for professional ethics, be under the responsibility of a specially designated physician". And it is now widely accepted by the bodies that manage the National Health Services that a doctor should be in charge of any centralised file data , and even more so if it is a computerised file , since it requires greater deontological vigilance.

This task should be entrusted to an archivist or a doctor with sufficient knowledge of this field specialization program. position In line with this rule, article 10 of the General Regulations on the Structure, Organisation and Functioning of Social Security Hospitals (BOE of 5 March 1985) places the Documentation Service and file among the medical services or units of the hospital and establishes that it will be headed by a doctor who will have the status of Head of Service or Head of Section, as the case may be. It is thus emphasised that it is not a general or administrative service.

article 19.3. A medical data bank should not be connected to a non-medical network computer.

This article, as well as the two previous ones, is an almost verbatim copy of a rule of the above-mentioned Postulate of the association World Medical Association on the use of computers in medicine, which is also reproduced in article 8 of the Principles of European Medical Ethics.

This isolation does not mean that medical data cannot be used to extract economically, management assistant or sociologically useful information. In order for the medical data to be used by others, medical or otherwise, for scientific or statistical purposes, any danger to confidentiality must be eliminated beforehand, for example by selectively separating the data identification staff from the patients. It can be very helpful in this regard to use modular record models that allow for easy "anonymisation" of the files by removing the identifying data . It is even better to use core topic systems to encode this identity, thus making it impossible to identify the patient and at the same time duplicating the data of the same patient. The World Medical Association's association policy states that "...confidentiality is not breached by submit or transferring confidential health care information for the purpose of purpose scientific research , management audit, financial control, programme assessment or similar programs of study , provided that the information provided does not identify, directly or indirectly, any individual patient....".

Physicians in charge of computerised medical databases data shall take care to maintain the independence and separation of their files or of the exclusively medical computer networks into which they are integrated and shall not allow any relaxation of the requirements requirements for accessing them.

article 20. When a physician ceases his private work , his file may be transferred to the colleague who succeeds him, unless the patients express their wishes to the contrary. Where no such succession takes place, the file shall be destroyed, without prejudice to the provisions of article 15.2 of this Code.

This article provides rules to protect the file of medical records when a physician ceases his or her private work practice, either because of incapacity or death, voluntary retirement or disciplinary suspension, or because he or she moves so far away that patients are unlikely to continue their relationship with him or her.

In principle, it seems preferable to keep the file rather than destroy it. Depending on the article, there are two possibilities: the file may be passed on to the successor doctor or it may be destroyed. In either case, patients must be consulted. They may, by virtue of their freedom of choice, refuse the care of the new doctor and have their clinical protocols handed over to the doctor of their choice. In order for patients to exercise this option, they must be informed, by letter staff or by advertisement in the press, by the doctor who is leaving or, where appropriate, by his widow or executor, or by the successor doctor, of the new status: that a new doctor has provisionally taken over the medical records from position and that they have deadline to decide how they are to be used. The file should be kept for a reasonable period of time to allow all concerned to make and implement their decision.

A file of medical records may never be sold as waste paper. If destruction is decided, the manager must ensure that it is carried out completely, to avoid even the slightest risk of leakage of confidential information.

There is now a strong movement in favour of preserving clinical records for their evidential and historical value. This can be done in institutions (archives, museums and libraries) designed to preserve materials of historical interest, which must ensure that for a reasonable period of time (75-100 years, for example in the UK) such documentation remains inaccessible to research and publication.