Medical confidentiality – what does it mean?
Medical confidentiality is one of the most fundamental principles in the Austrian healthcare system (Sec 54 para 1 Austrian Medical Act – Ärztegesetz 1998). It applies to all doctors, regardless of their specialisation or whether they work independently in a practice or are employed in a hospital. Accordingly, doctors and their assistants are obliged to treat any information obtained in the course of their professional practice as confidential. This includes in particular:
- Health data, diagnoses and examination results,
- Personal or family information,
- Information from confidential conversations with patients.
Third parties – including relatives, insurance companies or other doctors – may only receive this information if the person concerned expressly consents to this. Disclosure without consent is strictly prohibited.
Under which circumstances may medical confidentiality be lawfully breached?
Medical confidentiality is the foundation of the special relationship of trust between doctors and patients – but it is not unlimited. In certain situations, the law allows confidentiality to be waived if particularly important interests are at stake.
Disclosure of patient information may be permissible, for example, if it is absolutely necessary in terms of its nature and content to protect higher interests of the administration of justice or public health (Sec 54 para 2 ÄrzteG). In criminal proceedings themselves, there is no general right for doctors to refuse to testify (Sec 157 of the Austrian Code of Criminal Procedure (StPO). The only exception applies to specialists in psychiatry, who are permitted to refuse to testify about information obtained in the course of their work (Sec 157 para 1 nr 3 StPO).
Doctor as witnesses in criminal proceedings: obligation to testify – but not without limits
Witnesses have a duty to testify truthfully and completely. This obligation naturally also applies to doctors. They must comply with a summons to appear for questioning and provide accurate and complete information – otherwise they may be liable to prosecution for false testimony (Sec 288 of the Austrian Criminal Code (StGB). A release from confidentiality by patients is not a prerequisite for a testimony.
However, both the Austrian Medical Act and the Code of Criminal Procedure set clear limits:
- Testimony must be limited to what is absolutely necessary.
- Doctors, like any other person, have the right to remain silent at any time if answering a question would incriminate them (Sec 7 para 2 StPO).
- Individual questions concerning one’s own highly personal sphere of life or that of a patient – such as health, sex life or family circumstances – may be refused (Sec 158 para 1 nr 3 StPO), unless they are absolutely necessary to determine guilt or innocence.
In this way, the law protects both the relationship of trust with the patient and the public interest in effective criminal prosecution – a balancing act that in practice often requires legal advice from an experienced criminal defence lawyer.
The right of psychiatrists to refuse to testify
Doctors specialising in psychiatry have the right to refuse to testify (Sec 157 para 1 nr 3 StPO). However, this applies exclusively to information that the psychiatrist has obtained in the course of his work. This includes, for example, confidential communications that have been brought to the attention of the psychiatrist precisely because of his work.
The psychiatrist alone decides whether to make a statement for the record or to refuse to do so. He cannot be forced to refuse to testify. This is a highly personal right of the person concerned. Even if released from his duty of confidentiality, the specialist is free to exercise his right to refuse to testify.
In making this decision, he must carefully weigh up whether, in the specific case, the interest of confidentiality of an individual person outweighs the public interest of criminal prosecution. Again, the psychiatrist must limit his statements to what is absolutely necessary.
If the psychiatrist concludes that the patient’s personal interest in confidentiality outweighs the public interest in criminal prosecution, he must maintain his duty of confidentiality. If he does not invoke his right to refuse to give evidence under Sec 157 para 1 nr 3 StPO in this case, he himself may face legal consequences.
The right to refuse to give evidence may not be circumvented, for example by securing and seizing communications between patients and the treating psychiatrist (Sec 157 para 2 StPO).
Other persons in the healthcare sector who have the right to refuse to give evidence
In addition to psychiatrists, psychotherapists, psychologists, probation officers, registered mediators and employees of recognised institutions for psychosocial counselling and care also have the right to refuse to testify about what has become known to them in this capacity.
Public health officers: no medical confidentiality, but still subject to confidentiality obligations
With regard to their work as public health officers, the duty of confidentiality under Sec 54 para 1 ÄrzteG does not apply to public health officers. However, it should be noted that these persons are bound by the legal confidentiality obligations applicable to them. Such an obligation can be found, for example, in Sec 46 para 1 of the Austrian Civil Service Act (BDG, Beamtendienstgesetz). In criminal proceedings, public health officers who are classified as civil servants are prohibited from being examined as witnesses under Sec 155 para 1 nr 2 StPO.
A statement may only be made if the administrative authority has expressly released the person from their confidentiality obligation beforehand or if the statement was made in the course of criminal proceedings (Sec 155 para 2 StPO).
In the absence of such release, public health officers may not be questioned about circumstances in respect of which they are legally bound to maintain confidentiality.
Doctor as accused: right to remain silent
If a doctor is accused of misconduct, they face both civil and criminal consequences under medical liability law. In the case of a criminal charge, a general principle of criminal law applies: the accused may not be compelled to incriminate himself (prohibition of self-incrimination). They are free to refuse to make a statement at any time.
If doctors wish to actively exonerate themselves as accused, for example by disclosing certain patient information, particular caution is required. A careful weighing of interests must be carried out. Disclosure may only take place if it is absolutely necessary for the doctor´s own defence and if the interests of the defence outweigh the duty of confidentiality. Even then, only what is absolutely necessary may be disclosed.
In case of doubt, such a decision should always be made in consultation with an experienced lawyer specialising in criminal law in order to avoid legal risks and possible breaches of duty.
Criminal defence in medical criminal law
In medical criminal law, the right legal assistance can be crucial. It is important to consult an experienced criminal defence lawyer at an early stage of the investigation, as many decisions that will determine the course of the criminal proceedings are already made at this stage.
A specialised criminal defence lawyer continuously reviews the files, develops a clear defence strategy and prepares a written statement together with the doctor concerned.
In addition, an experienced lawyer ensures that all the rights of the accused and legal protection are upheld – for example, by submitting evidence in criminal proceedings in good time or by using appropriate legal remedies.
In some cases, it is possible to have the criminal proceedings discontinued at an early stage of the investigation. This helps to protect the doctor’s reputation and professional future and to prevent possible civil law consequences arising from medical liability as far as possible.
