Who must respect medical secrecy?

What is the law on medical secrecy in France?

Medical secrecy is governed in France by the “Kouchner” law of March 4, 2002 on patients’ rights. This law is included in the Public Health Code. “One of the first rights of patients is that of the right to secrecy, which is mentioned in article L. 1110-4 of the Public Health Code. This article brings together a certain number of principles hitherto scattered in the case law“, explains Marc Dupont, assistant to the Department of Legal Affairs and Patients’ Rights. This article states that anyone under the care of a healthcare professional – and therefore in particular by a doctor –, by a health establishment or service, a professional contributing to prevention and care, has the right to respect for his private life and to respect for information concerning her. “Medical secrecy cannot be opposed by the doctor to his patient, the doctor owes him all the information. It is through him that in the practice of medicine confidences made are protected between a doctor and a patient, it is essential to build trust within this relationship“. It’s about a ethical obligation for physicians.

What is the difference with professional secrecy?

“The obligation of secrecy in health has long been regarded as that of the doctor, just as there is a secrecy of the lawyer, of the social worker…”, he notes. Since the Kouchner law, medical secrecy is binding on all health professionals involved in the health system : nurses, radiologists, nursing assistants, psychologists and doctors, etc., but also all members of the staff of health establishments or any other service provider: the meal carrier or the volunteer who visits the sick, for example. The Social Security agents who see the medical records are also bound by professional secrecy. “The doctor having a pivotal role in the health system, it is often he who is the recipient of the most confidential information. The notion of “medical” secrecy has a fairly wide application in everyday language, which covers that of professional secrecy in health“, specifies Marc Dupont. Medical secrecy is therefore neither more nor less than a branch of professional secrecy. There is therefore no no difference between them.

What information is covered by medical secrecy?

The information covered by medical secrecy is not only thethe patient’s confidences but everything the healthcare professional saw, heard, understood during the consultation. “According to article 4 of the Public Health Code, secrecy covers everything that came to the knowledge of the doctor in the exercise of his profession. The doctor cannot therefore divulge in his family circle or hospital that he has seen or that he follows such and such a patient, a neighbor, a relative…“, he adds. The duty of the doctor is therefore to don’t divulge anything.

When can medical secrecy be lifted?

Medical secrecy is in principle absolute. There are however deductions to medical secrecy provided for by law which make it possible to preserve public order, the proper functioning of society or the interest of the community: for example, transmitting to the health authority data relating to certain communicable diseases the list of which is fixed by regulation, draw up detailed medical certificates for psychiatric care without consent, reporting deaths and/or births, draw up certificates for accidents at work and occupational diseasesdetail the injuries and their consequences, send to the expert appointed by the conciliation and compensation commission the documents that the doctor has on the person who considers himself to be the victim of damage attributable to a prevention, diagnosis or care (medical accidents, HIV, asbestos, etc.), communicate when the doctor practices in a health establishment to the doctor responsible for medical information, the nominative medical data necessary for the evaluation of the activity as part of the pricing. “There was a significant debate about these exceptions to medical secrecy 30 years ago in the context of the HIV epidemic which was to know if the doctor could or should make known to the companion of the patient infected with HIV the situation not revealed by the latter. The National Academy of Medicine leaned towards the possibility of disclosure in the interest of the person who could be contaminated. The question that was asked: non-assistance to a person in danger versus medical secrecy. It was decided by the National Council of the Order of Physicians and by Simone Veil, Minister of Health at the time, who said that medical secrecy had to prevail over any consideration, any risk of major contamination, because otherwise the trust essential to the doctor-patient relationship would be broken“, he recalls.

In the event of violation of medical secrecy, a fine of 15,000 euros and one year’s imprisonment may be decided.

What is shared medical confidentiality?

The shared medical secret is a fairly recent notion that has developed in two stages. A first step, present in the Kouchner law (2002), which provides that when the patient is cared for in a hospital environment within a team, the secret is “deemed shared“ by the whole team. “Within the team, all information related to the patient’s pathology will be shared. If a patient sees a cancer patient and he talks to him about his personal life, this information will not be shared within the service, only current medical information will be.”, he says. The second stage in 2016 introduces into the law the concept “care team” : it is then considered that the care team works together for the care of a patient and in this case the secret is shared and entrusted to the whole team. “Today, medicine is increasingly carried out in multiple establishments. With this new concept, we take into account the fact that the care team can extend beyond the hospital, in several establishments. In this case, medical secrecy may be shared, but only with the prior consent of the patient“, he indicates.

Does medical secrecy apply after death?

medical secrecy continues to prevail after death : “death does not free the doctor from secrecy”, according to medical ethics. So for “a patient who dies of HIV, for example, and who did not want the cause of his death to be revealed during his lifetime. This one won’t. This situation is not necessarily simple“. If the family or the heirs request access to the medical file of the deceased person, the information relating to the cause of death can in principle be communicated to them, but subject to the contrary wish of the patient expressed during his lifetime.

In the event of a violation of medical secrecy, several ways are possible to lodge a complaint. Criminal action can be taken by filing a complaint with the public prosecutor or the police station. Article 226-13 of the Penal Code punishes the disclosure of information of a secret nature. An investigation will take place and will lead, if necessary, to an action before the criminal court.
A complaint to the Council of the College of Physicians can also be made in this capacity, and can be done in parallel with the criminal complaint. The questioning of the doctor can be envisaged and can make him incur a sanction such as a warning, a reprimand or other, up to a disqualification. “These two remedies are possible either independently or in parallel. Another way is still possible but more complicated: complain to the headteacher in which the health professional at fault exercises who, as an employer, may initiate a disciplinary“, he specifies.

What fine in case of violation of medical secrecy?

In the event of breach of medical secrecy, a fine of 15,000 euros and one year in prison may be decided against the healthcare professional.

Thanks to Marc Dupont, Assistant to the Department of Legal Affairs and Patients’ Rights, Assistance Publique – Hospitals of Paris (AP-HP).