MEDICAL SECRECY: THE CONCEPT, SIGNS, METHODS OF PROTECTION

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The Constitution of the Russian Federation proclaims the right of a citizen to inviolability of private life (Article 25 of the Constitution of the Russian Federation). In science, information about human health is also considered an element of his private life [1, p. 30]. Medical secrecy has been the most important principle of all medical activity for thousands of years.
In the basic law in the field of health care (Federal Law No. 323-FZ of 21.11.2011 "On the basics of Public Health protection in the Russian Federation" (hereinafter referred to as the Law on the Basics of Health Protection), the concept of medical secrecy is defined by listing the information that makes up it: about the fact of a citizen's request for medical care, his state of health and diagnosis, and other information obtained during his medical examination and treatment. In other states, the concept and content of medical secrecy are almost similar [2, p. 23].
Many scientists consider it necessary to use more precise and appropriate terms when referring to the above-mentioned secret and suggest calling it a medical, not a medical secret, since not only doctors are called upon to observe it [3, p. 27; 4, p.131; 5, p. 6]. Other authors consider both concepts as identical and do not see the need to change (adjust) the definition. The qualification of this legal phenomenon in the range of possible confidential information also raises questions. A number of scientists classify medical secrecy as a personal secret, while other researchers classify it as professional or official [6, p. 35; 7, p.40; 8]. We believe that, depending on the subject designated as an obligated person, it can be attributed to any of the listed ones. Medical secrecy is characterized by certain signs (traits): the complex composition of the information, the professional subject, the confidentiality regime and the existence of responsibility for violations of the latter.

We agree with the authors who insist on the modification of the components designated by the legislator in relation to medical secrecy. Thus, Pavlov A.V. proposed to correct the concept, replacing the element "state of health", emphasizing the connection with the disease, with "state of the body" and expand the list of stages of medical activity, during which the named information can be obtained, at the moment the law specifies only examination and treatment [5, p. 20].

Despite the rigidity of the legislative provisions aimed at protecting medical confidentiality, judicial practice, unfortunately, knows examples of violations of the basic medical rule: there are cases of disclosure of medical information to employers, reporting to their creditors, transferring data to insurers, uncoordinated communication with the patient to their relatives and other persons (Review of judicial practice of the Supreme Court of the Russian Federation for the III quarter of 2005 // Bulletin of the Supreme Court of the Russian Federation 2006. No. 3; Resolution of the Arbitration Court of the Central District of 25.09.2014 No. 10-3132/14 in case No. A64-4082/2012, etc.). Issues of medical confidentiality have repeatedly been the subject of consideration by the Constitutional Court of the Russian Federation [9, p.40]. The European Court of Human Rights has also repeatedly stressed the importance of protecting medical information in order to ensure respect for private and family life, which is guaranteed (for example, the Decision of the European Court of Human Rights of 25.02.1997 (Complaint No. 22009/93).

Medical secrecy is a personal non-property right, the restriction of which is possible as an exception only in accordance with the procedure provided for by law and on the grounds specified therein. Thus, obtaining information by other citizens, including officials, for the purpose of medical examination and treatment of a patient, conducting scientific research, publishing it in scientific publications, using it in the educational process and for other purposes is allowed only with the written consent of the citizen or his legal representative. In addition, the law contains a closed list of cases of providing such data without the consent of their owner (for socially significant purposes), but does not disclose the procedure for notifying citizens about the transfer of information to third parties. We consider it expedient to develop a detailed procedure and legally fix it.

The issue of the interaction of medical personnel with each other is also complex. For example, whether a specialist doctor can inform the attending physician of the information he has received about the patient, because the patient has the right to insist on refusing to receive such information and must decide for himself whether to disclose and use it. A similar problem arises in the situation of an urgent need to report data to the relatives of a citizen. It should be borne in mind that the ethical side of the examination, diagnosis and treatment is quite complex and multifaceted. And here the work of the ethics committees (departments, councils) that promote the choice of a compromise option is valuable.

For violation of medical confidentiality, medical workers can be brought to disciplinary, civil, administrative and criminal liability. In the civil law sector, it is not superfluous, in our opinion, to develop additional measures and methods of protection, since the general rules and existing mechanisms do not always take into account the specifics of problems arising in the non-property sphere.

About the authors

Polina Kudasheva

Author for correspondence.
Email: kudasheva_ps@mail.ru

References

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