Violation of medical secrecy and its consequences. The power of words, or all about medical secrecy

The analytical article of the lawyer Olga Zinovyeva contains a detailed legal assessment of medical secrecy as the most important legal and moral-ethical institution that underlies the relationship between a patient and a medical worker.

The growing legal and public control over medical activities in recent years does not disregard the issues of legal regulation of such an important institution of medical law as the institution of medical secrecy, as well as the issues of law enforcement in case of violation of the citizen's right to keep secret information classified as medical secret by persons obliged to comply with it.

Medical secrecy, due to the peculiarities of the medical activity itself, is the most important concept of deontology (from the Greek deon - due and logos - teaching) as a teaching on the principles of behavior of medical personnel in communicating with the patient and his relatives. However, the peculiarity of medical secrecy, which distinguishes this institution from other concepts of deontology and refers it to legal concepts, is that the safety of medical secrets is guaranteed by law in the same way as it is legislatively ensured by establishing certain prohibitions and legal responsibility for its disclosure.
The judicial and administrative practice that has developed in Russia in recent years testifies to a significant (in comparison with the Soviet period of domestic judicial history and the first decade of legal reform reforms) growth in the legal literacy of patients and their relatives, manifested, inter alia, in an increase in justified claims against medical personnel. caused by violation of medical confidentiality.
The recent history of the legislative regulation of medical secrecy today has more than twenty years: December 12, 2013 marks the 20th anniversary of the adoption of the Constitution of the Russian Federation, which formulated the legal basis for the protection of medical secrecy; July 22, 2003 - 20 years from the date of approval of the Fundamentals of the Legislation of the Russian Federation on the Protection of Citizens' Health (hereinafter - the Fundamentals), which determined the scope of medical secrets and the subjects of responsibility for its disclosure, as well as limited the cases of providing information constituting medical secrets without the consent of the citizen ...
And finally, on November 21, 2011, Federal Law No. 323-FZ “On the Fundamentals of Health Protection of Citizens in the Russian Federation” was adopted and on January 1, 2012 entered into force, in which Article 13 is devoted to the legal regulation of medical secrecy protection in the Russian Federation.
Part 1 of Article 23 of the Constitution of the Russian Federation establishes the right of every citizen to inviolability of private life, personal and family secrets. The consolidation of this right at the constitutional level determines the belonging of the right to non-disclosure of medical secrets to the number of fundamental constitutional rights of a person and a citizen, which guarantees him special legal protection.
In accordance with paragraph 9 of Art. 4 of the Federal Law No. 323-FZ of November 21, 2011 "On the Fundamentals of Health Protection of Citizens in the Russian Federation", observance of medical confidentiality is referred by the legislator to the basic principles of health protection.
In accordance with parts 1, 2 of Art. 13 of the Federal Law No. 323-FZ of November 21, 2011, information about the fact of a citizen's appeal for medical care, his state of health and diagnosis, other information obtained during his medical examination and treatment, constitutes a medical secret.

Thus, medical secrets are:

information on the fact of seeking medical assistance;
information about the state of health of a citizen;
information about the diagnosis;
other information obtained during medical examination and treatment of a citizen.

It is not allowed to disclose information constituting a medical secret, including after the death of a person, by persons who became aware of them during training, performance of labor, official, official and other duties, except for the cases established by parts 3 and 4 of this article. Thus, a medical secret, being a personal secret entrusted to a doctor, belongs to the so-called professional secrets, along with advocate secrets, bank secrets, and notarial secrets.
At the same time, the established legislative prohibition on the disclosure of information constituting a medical secret after the death of a citizen is currently the subject of active legal doctrinal and practical discussions, caused by the restriction, unjustified by a reasonable balance of interests of members of society, on the receipt by the relatives of the deceased, presumably affected by poor quality medical care, copies of medical documentation for independent expert control of the quality of medical care. Within the framework of this discussion, a number of deputies of the State Duma of the Russian Federation expressed their intention to initiate amendments to the current federal law in terms of granting the relatives of a deceased person the right to receive copies of medical documents after his death for the purpose of assessing the quality of medical care provided to him. Also, a similar appeal was the subject of a legal assessment of the Constitutional Court of the Russian Federation, which considered the appeal on the unconstitutionality of the said provision of Article 13 of the Federal Law “On the Fundamentals of Health Protection of Citizens in the Russian Federation”. Thus, drawing public attention to the unjustified narrowing of the rights of relatives in the presence of reasonable doubts about the quality of medical care provided to their loved ones, as well as the legislative initiative and constitutional and legal assessment of this restriction, make it possible to hope for a change in the very near future of Art. 13 of the Federal Law in the part under consideration, and the restoration of the logic of the legislator, Article 17 of the Civil Code of the Russian Federation established the termination of the legal capacity of a citizen at the time of his death.

In accordance with part 3 of Art. 13 of the said Federal Law, with the written consent of a citizen or his legal representative, it is allowed to disclose information constituting a medical secret to other citizens, including officials, for the purpose of medical examination and treatment of a patient, conducting scientific research, publishing it in scientific publications, and using it in educational process and for other purposes.
It should be noted that the previous version of this provision, formulated in Art. 61 of the Foundations of 1993, did not require the written consent of a citizen to disclose information constituting a medical secret in these cases. Taking into account the special instruction of the legislator on the written form of such consent, the dissemination of such information for the purpose of medical examination and treatment of the patient, conducting scientific research, publication in scientific publications, use in the educational process and for other similar purposes in the absence of a specially prepared written consent of the patient containing an unconditional expression of will to use his data for the specified purposes will be a violation of the law.

Part 4 of Art. 13 of the Federal Law No. 323-FZ of November 21, 2011 "On the Basics of Health Protection of Citizens in the Russian Federation" there is an exhaustive list of legal grounds for providing information constituting medical secrets without the consent of a citizen or his legal representative.

So, the provision of information that is a medical secret without the consent of a citizen is allowed:
1) in order to conduct a medical examination and treatment of a citizen who, as a result of his condition, is unable to express his will, taking into account the provisions of paragraph 1 of part 9 of article 20 of Federal Law No. 323-FZ, that is, in cases where medical intervention is necessary for urgent reasons to eliminate the threat to a person's life and if his condition does not allow expressing his will or there are no legal representatives;
2) with the threat of the spread of infectious diseases, mass poisoning and injuries;
3) at the request of the bodies of inquiry and investigation, the court in connection with the conduct of an investigation or trial, at the request of the body of the penal system in connection with the execution of a criminal punishment and control over the behavior of a conditionally convicted person, a convict in respect of whom the serving of the sentence has been postponed, and a person released on parole;
4) in the event of medical assistance to a minor in accordance with clause 2 of part 2 of Article 20 of this Federal Law (that is, in the provision of oncological assistance to a minor suffering from drug addiction, or during a medical examination of a minor in order to establish a state of narcotic or other toxic intoxication), as well as a minor under the age established by part 2 of Article 54 of this Federal Law (that is, the age of fifteen years and sixteen years for a minor with drug addiction) to inform one of his parents or other legal representative;
5) in order to inform the internal affairs bodies about the admission of a patient in relation to whom there are sufficient grounds to believe that harm to his health was caused as a result of illegal actions;
6) in order to conduct a military medical examination at the request of military commissariats, personnel services and military medical (medical flight) commissions of federal executive bodies, in which the federal law provides for military and equivalent service;
7) for the purpose of investigating an industrial accident and occupational disease;
8) when exchanging information by medical organizations, including those posted in medical information systems, in order to provide medical care, taking into account the requirements of the legislation of the Russian Federation on personal data;
9) for the purpose of accounting and control in the compulsory social insurance system;
10) for the purpose of monitoring the quality and safety of medical activities in accordance with this Federal Law.

This list is exhaustive and not subject to broad interpretation.
As can be seen from the specified list, it has been significantly expanded and supplemented in comparison with the list that previously determined the cases of providing information constituting a medical secret in the absence of a citizen's consent.
A certain nuance appeared with the enactment of the Federal Law "On advocacy and the legal profession in the Russian Federation", which provided lawyers with extensive rights, including the right to collect information necessary for the provision of legal assistance, including the right to request certificates, characteristics and other documents from government bodies, local government bodies, public associations, as well as other organizations; at the same time, these bodies and organizations, in turn, are obliged, in the manner prescribed by law, to issue the lawyer the documents requested by him or their certified copies within a month. With the introduction of the aforementioned Federal Law, did the persons professionally obliged to observe medical secrecy become obliged to provide information constituting it, also at a lawyer's request?
It should be noted that medical organizations quite often encounter a situation when a person with a lawyer status, referring to the specified norm of the legislation on the legal profession, requests information constituting medical secrets from a medical organization in relation to persons who have applied for medical care, and often such requests are uninformative in terms of the actual implementation of actions by the lawyer in the interests of the specified person or against him.
The answer to this question is quite obvious - since article 13 of Federal Law No. 323-FZ, the lawyer's request is not included in the list of cases when information constituting a medical secret can be provided to third parties in the absence of the patient's consent, the information constituting it can be provided to a lawyer, as well as to other persons, solely on the basis of a notarized power of attorney, which specifically provides for the authority to provide the attorney with information constituting the client's medical secret. In other words, the fact that the applicant has a lawyer status under no circumstances provides him with the right to receive information constituting a medical secret, in the absence of a special authority to receive such information, drawn up in accordance with the current legislation, that is, notarially or in a manner equivalent to the law to the notarial procedure for certifying the will of the principal.
A related issue is the issue of the right of a medical organization to provide a lawyer with information constituting a medical secret in the event of a conflict with the patient himself in the absence of the patient's consent. This question should be answered positively, guided by the following.
In accordance with Art. 1 of Federal Law No. 63-FZ of May 30, 2002 "On advocacy and the legal profession in the Russian Federation", advocacy is qualified legal assistance provided on a professional basis by persons who have received the status of an advocate in the manner prescribed by this Federal Law, individuals and legal entities in order to protect their rights, freedoms and interests, as well as to ensure access to justice. In accordance with Art. 2 of the aforementioned Federal Law No. 63-FZ, an advocate is a person who, in accordance with the procedure established by this Federal Law, has received the status of an advocate and the right to carry out advocacy. The lawyer is an independent professional legal advisor. As follows from paragraphs. 2, 3 tbsp. 2 of Federal Law No. 63-FZ, providing legal assistance, a lawyer, inter alia, gives advice and information on legal issues both orally and in writing, draws up statements, complaints, petitions and other documents of a legal nature, participates as the representative of the principal in civil, administrative, arbitration, criminal proceedings, and also provides other legal assistance not prohibited by federal law.
Thus, the right of a medical organization to contact a lawyer in order to obtain qualified legal assistance is unconditional and guaranteed both by the current civil legislation and by the legislation on advocacy and the legal profession.
In accordance with sub. 5 p. 4 art. 6 of Federal Law No. 63-FZ of May 30, 2002 "On advocacy and the legal profession in the Russian Federation", a lawyer is not entitled to disclose information provided to him by the client in connection with the provision of legal assistance to the latter, without the consent of the client, while, in accordance with from st. 8 of the Federal Law No. 63-FZ of May 30, 2002 "On advocacy and the legal profession in the Russian Federation", advocate secret is any information related to the provision of legal assistance by an advocate to his client.
Thus, the current legislation establishes additional guarantees for observing medical confidentiality when applying for qualified legal assistance to persons who have received the status of a lawyer, by imposing on the lawyer the obligation to comply with the lawyer's secrecy, determined by Art. 8 of Federal Law No. 63-FZ as any information related to the provision of legal assistance by a lawyer to his client.
Thus, taking into account the specified additional guarantees of observance of medical secrecy through the institution of advocate secrecy, as well as taking into account the legislative requirement to keep information constituting medical secrets in secret, persons to whom information constituting medical secrets has been transferred in accordance with the procedure established by law, on an equal basis with medical workers , and the unconditional right of a medical organization to receive qualified legal assistance by concluding an agreement on legal assistance with a lawyer, the right to transfer information constituting a medical secret to a lawyer for the purpose of providing legal assistance in a situation of a legal conflict with a patient should be recognized as absolute.

As for the practice of violating the requirements for keeping confidential information constituting a medical secret, it shows that the disclosure of medical secrecy is quite common among medical personnel. For example, an anonymous survey conducted several years ago among employees of the city multidisciplinary hospital of St. this is a violation of the requirements of the law and the principles of deontology. In addition, more than three quarters of the surveyed medical personnel indicated that when communicating with the relatives of patients, they are never interested in documents confirming kinship, and willingly talk about the diagnosis and prognosis of the disease with persons who simply introduced themselves as relatives of the patient.
Meanwhile, domestic legislation provides for several types of legal liability for violation of medical secrecy.

First of all, this is the responsibility provided for by the current civil legislation.
So, Art. 150 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) establishes that personal secret refers to the intangible (non-property) benefits of a person, inalienable and non-transferable in any other way. Article 151 of the Civil Code of the Russian Federation determines that if moral harm is caused to a citizen as a result of disclosing medical secrets, the court may impose on the violator the obligation of monetary compensation for such harm. It should be borne in mind that moral harm is understood as the physical and mental suffering of a citizen, endured by him as a result of the violation of intangible benefits or personal non-property rights. Chapter 59 of the Civil Code of the Russian Federation specifies the provisions of Article 151, and in Art. 1064 indicates that the harm caused to the personality of a citizen is subject to compensation in full.
In accordance with Art. 1068 of the Civil Code of the Russian Federation, a legal entity compensates for harm caused by its employee in the performance of labor (official, official) duties, regardless of whether the employee performed work on the basis of an employment contract (contract) or under a civil law contract, while, in accordance with Art. 1081 of the Civil Code of the Russian Federation, a person who has compensated for harm caused by another person (doctor worker) has the right to reclaim (recourse) to this person (doctor) in the amount of the compensation paid.
Thus, in the event of disclosure of information constituting a medical secret, a representative of a medical, paramedical, junior medical or administrative personnel of a medical organization, the defendant in the case for compensation for harm caused by the disclosure of medical secrets, will be the medical organization, while the employee himself is subject to participation in the case as a third party.
Taking into account the fact that Article 1968 of the Civil Code of the Russian Federation establishes the responsibility of legal entities for the actions of their employees, in cases of disclosure of medical secrets by other persons to whom the information constituting it became known when performing other functions not related to labor duties or obligations, generated by the conclusion of a civil law contract, the defendant in such a case will be the person himself.
It should be especially noted what exactly the legislation and judicial practice understands under the disclosure of medical secrets. Guided by the principle of the analogy of law, it can be argued that the disclosure of medical secrets takes place when information constituting a medical secret is published in the press, broadcast on radio and television programs, shown in newsreel programs and other media, presentation in judicial characteristics (without a special court request or a demand unambiguously formulated by the court during the trial of the case), public speeches, statements addressed to officials, or communication in any form, including oral, to several or at least one person.
Undoubtedly, the greatest public danger is the disclosure of medical secrets to an unlimited number of persons through the media (magazines, newspapers, television and radio). Despite the seeming rarity of disclosing medical secrets in this way, it should be noted that such cases, indeed, are rare, however, as a rule, they inflict significant moral harm on persons in respect of whom such information has been disclosed, have a great public resonance and a serious judicial prospect. ...

Thus, the Leninsky District Court of St. Petersburg considered a civil case at the suit of the father of a young child, the detailed information about the state of health of which, the fact of seeking medical help, diagnosis and prognosis of the disease were deliberately, without the consent of the child's parents, were reported by the head of the hospital department, in which there was a child, a correspondent of one of the television programs, which went on the evening air of the First Channel, as a result of which information constituting a medical secret became known to an unlimited circle of persons - the audience of the program. In the given example, it is especially noteworthy that the doctor informed the correspondent of information constituting a medical secret, not in a personal confidential conversation with the latter, but specifically for recording his speech, thereby assuming the possible availability of the information he provided to an unlimited number of persons. The amount of the claim exceeded the doctor's monthly salary by sixty times.

The Kalininsky District Court of St. organization with a claim in the manner prescribed by the legislation on the protection of consumer rights. The patient's medical documents were attached to the claim, which confirmed the validity of his claims. By the General Director of the private ambulance, the text of the patient's claim, containing a detailed description of his medical history, personal data, a description of his physical and mental suffering, as well as the documents attached to the claim were scanned and sent by e-mail from the email address of the CEO to sixty email addresses of managers of others private and state medical organizations of St. Petersburg; at the same time, the sent documents were accompanied by personal boorish comments of the said leader, which cannot be given in this article due to their "non-academic" nature. By the decision of the Kalininsky District Court of St. Petersburg, the patient's claims were partially satisfied, and court costs were also recovered in his favor; at the same time, in the text of the decision, the court separately emphasized the inadmissibility of the dissemination of information constituting a medical secret, also through the so-called "closed" mailing.

In addition to civil law, legislation also establishes criminal liability for disclosing medical secrets. It is noteworthy that Art. 137 of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation), which directly relates to medical secrecy, was placed by the legislator in the chapter "Crimes against constitutional rights and freedoms of man and citizen", which once again confirms the special protection of medical secrecy by the law.
The current Criminal Code of the Russian Federation provides for liability for the dissemination of information about the private life of a person that constitutes his personal secret, without his consent, or the dissemination of this information in a public speech, a publicly displayed work or in the media, if these acts were committed out of selfish or other personal interest and caused harm to the rights and legitimate interests of citizens. So, the commission of this act by a person using his official position (and the responsibility for disclosing medical secrets lies with the persons to whom it became available precisely because of their official position) entails a criminal penalty in the form of a fine in the amount of five hundred to eight hundred times the minimum wage or the salary or other income of the convicted person for a period of five to eight months, or deprivation of the right to hold certain positions or engage in medical activities for a period of two to five years, or arrest for a period of four to six months.
In addition, liability due to the disclosure of medical secrets may arise in accordance with Art. 286 of the Criminal Code of the Russian Federation - "Exceeding official powers": the commission by an official of actions that clearly go beyond his powers and entail a significant violation of the rights and legitimate interests of a citizen, is punishable by a fine in the amount of one hundred to two hundred minimum wages or in the amount of wages or other the convicted person's income for a period of one to two months, or by deprivation of the right to hold certain positions or engage in medical activities for a period of up to five years, or arrest for a term of four to six months, or imprisonment for a term of up to four years. If the same act entailed grave consequences, then it is punishable by imprisonment for a term of three to ten years with the deprivation of the right to hold certain positions or engage in medical activities for a term of up to three years.
It should be especially noted that the imputed commission of an act under Art. 286 of the Criminal Code of the Russian Federation, can only be an official of a state or municipal medical institution who unauthorizedly disclosed information constituting a medical secret, since here we are talking about an illegal violation of the inviolability of official (official) secrets. With regard to medical and other personnel of state or municipal medical institutions who are not officials, as well as against officials and other employees of private or departmental medical enterprises (institutions), criminal prosecution for this corpus delicti is excluded.

The increased responsibility and the increase in the number of satisfied claims will sooner or later lead to the fact that among the medical and nursing staff, the preservation of medical secrecy will be given priority along with health protection. However, already now, compliance with the basic legislative and ethical provisions should become the most important principle of medical activity, bringing domestic medicine closer to civilized world standards.

Medical secrecy is a multifaceted ethical and legal concept. The concept of medical secrecy and the conditions for its disclosure are enshrined in the Fundamentals of the Legislation of the Russian Federation on the Protection of Citizens' Health (hereinafter - the Fundamentals).

Article 61 of the Fundamentals states that medical secret is information about the fact of seeking medical help, the state of health of a citizen, the diagnosis of his illness and other information obtained during his examination and treatment.

The framework provides that the disclosure of medical confidentiality can occur with or without the patient's consent. With the consent of a citizen or his legal representative, it is allowed to transfer information constituting a medical secret to other citizens, incl. officials, in the interests of examining and treating a patient, for conducting scientific research, publishing in scientific literature, using this information in the educational process and for other purposes. In this case, remember the following:

1. The fact of consent of the patient or his legal representative should be made in writing in order to avoid misunderstandings and to ensure the legal safety of the medical organization, certifying this with the patient's signature.

2. It is necessary to clearly remember who can be a legal representative. Legal representatives appear only for incapacitated or incapable citizens. They can be parents, adoptive parents, guardians, trustees or other persons who are granted this right by law. Before executing the will of the patient's legal representative, you should make sure of the authority of this person.

Disclosure of medical secrets without the consent of the patient or his legal representative is allowed in the following cases:

1) for the purpose of examining and treating a citizen who, due to his condition, is unable to express his will;

2) with the threat of the spread of infectious diseases, mass poisoning and injuries;

3) at the request of the bodies of inquiry and investigation, the prosecutor and the court in connection with an investigation or court proceedings;

4) in case of rendering assistance to a minor under 15 years of age (for drug addicts - up to 16 years) and to inform his parents or legal representatives;

5) if there are grounds for believing that the harm to the health of a citizen was caused as a result of unlawful actions;

6) in order to conduct a military medical examination in the manner prescribed by the regulation on military medical examination.

The confidentiality of information constituting a medical secret is also enshrined in the Family Code of the Russian Federation: "the results of the examination of a person entering into a marriage constitute a medical secret and can be communicated to the person with whom he intends to marry only with the consent of the person who has passed the examination" (p. . 2 art. 15).

The legal provisions on the preservation of medical confidentiality are detailed in the Federal Law of July 27, 2006 No. 152-FZ "On Personal Data" (hereinafter referred to as the Law).

The law states that its purpose is to ensure the protection of human and civil rights and freedoms when processing his personal data, including the protection of the rights to privacy, personal and family secrets.

The law identifies special categories of personal data, which include, among other things, information about the state of health of a citizen.

Processing of special categories of personal data is allowed only in cases determined by law, including the following:

1) the subject of personal data has given his consent in writing to the processing of his personal data;

2) personal data are publicly available;

3) personal data refers to the state of health of the subject of personal data and their processing is necessary to protect his life, health or other vital interests or the life, health or other vital interests of others, and it is impossible to obtain the consent of the subject of personal data;

4) the processing of personal data is carried out for medico-prophylactic purposes, in order to establish a medical diagnosis, the provision of medical and medico-social services, provided that the processing of personal data is carried out by a person who is professionally engaged in medical activities and is obliged in accordance with the legislation of the Russian Federation to maintain medical secrecy ...

According to Art. 9 of the law, the obligation to provide evidence of obtaining the consent of the subject of personal data to the processing of his personal data, and in the case of processing publicly available personal data, the obligation to prove that the processed personal data is publicly available rests with the operator, i.e. on the one who processes personal data.

The written consent of the subject of personal data to the processing of his personal data must include:

1) last name, first name, patronymic, address of the subject of personal data, number of the main document proving his identity, information on the date of issue of the specified document and the issuing authority;

2) the name (last name, first name, patronymic) and address of the operator who receives the consent of the subject of personal data;

3) the purpose of processing personal data;

4) a list of personal data for the processing of which the consent of the subject of personal data is given;

5) a list of actions with personal data, for the performance of which consent is given, a general description of the methods of processing personal data used by the operator;

6) the period during which the consent is valid, as well as the procedure for its withdrawal.

In accordance with Art. 19 of the law, when processing personal data, the operator is obliged to take the necessary organizational and technical measures to protect personal data from unauthorized or accidental access to them, destruction, modification, blocking, copying, dissemination of personal data, as well as from other illegal actions.

It is necessary to determine the circle of persons who are obliged to keep medical confidentiality.

First, any doctor, by definition, is the bearer and, accordingly, the keeper of medical secrets, because according to Art. 60 Fundamentals, persons who graduated from higher medical educational institutions of the Russian Federation, upon receiving a doctor's diploma, take the oath of a doctor. At the same time, the doctors swear to "keep medical confidentiality."

However, the law does not limit the list of keepers of medical secrets only to doctors, imposing the obligation to keep information constituting medical secrets also on the persons to whom they became known during training, performance of professional, official and other duties (Article 61 of the Fundamentals). Thus, a potential keeper of the patient's secret is any person who, to one degree or another, has received information about the patient.

It should also be remembered that in addition to the employees of the medical institution to which the patient applied, other persons who are admitted to information containing medical secrets due to their official duties can also become the guardians of medical secrets. These can be employees of government agencies (health authorities, law enforcement agencies), medical insurance organizations. They, like medical workers, taking into account the damage caused to a citizen, are responsible for the disclosure of medical secrets established by law.

The law establishes criminal, administrative, disciplinary and civil liability for divulging medical secrets.

Let's start by looking at criminal liability.

Until January 1, 1997, the Criminal Code of the RSFSR was in force on the territory of Russia, in which Article 128.1 was introduced in December 1994, providing for criminal liability for disclosing information constituting a medical secret. It provided for criminal liability up to imprisonment for up to 2 years.

However, when adopting the new Criminal Code, the legislator has combined this crime with other illegal actions, as a result of which it has provided for criminal liability for disclosing medical secrets in Article 137 “Violation of the inviolability of privacy”. So, according to part 1 of this article, illegal actions are "illegal collection or dissemination of information about the private life of a person constituting his personal or family secret, without his consent, or dissemination of this information in a public speech, publicly displayed work or mass media." In our case, Part 2 will most often be applied, which provides for criminal liability for “the same acts committed by a person using his official position” and provides for the following sanctions: a fine in the amount of 100 thousand to 300 thousand rubles, or in the amount of salary, or other income of the convicted person for a period of 1 to 2 years, or deprivation of the right to hold certain positions or engage in certain activities for a period of 2 to 5 years, or arrest for a term of 4 to 6 months, or imprisonment for a term of 1 to 4 years with deprivation of the right to hold certain positions or engage in certain activities for up to 5 years.

Thus, providing for punishment in the form of deprivation of the right to hold certain positions or engage in certain activities, the legislator speaks of the professional unsuitability of the employee who disclosed personal information, and in our case, the patient's medical secrecy.

A softer form of liability is administrative liability, which is provided for in Article 13.14. RF Code of Administrative Violations "Disclosure of information with limited access."

Here too, the legislator equates responsibility for disclosing medical secrets with disclosing classified information in general. Disclosure of information, access to which is limited by federal law (except in cases where disclosure of such information entails criminal liability), by a person who has gained access to such information in connection with the performance of official or professional duties, shall entail the imposition of an administrative fine on citizens in the amount of 500 to 1 thousand rubles, for officials - from 4 thousand to 5 thousand rubles.

There is also disciplinary responsibility of medical workers for violations committed by them, incl. and regarding the disclosure of medical confidentiality.

It is provided for by the Labor Code of the Russian Federation (Article 192) and provides for 3 types of penalties imposed on employees for committing a disciplinary offense, i.e. non-performance or improper performance through the fault of the employee of the labor duties assigned to him: reprimand, reprimand and dismissal on appropriate grounds.

However, bringing to any of the above types of liability does not relieve the perpetrator from the obligation to compensate the victim for the harm caused.

We are talking about civil liability.

In civil law, the concept of medical secrecy is included in the concept of personal secrecy.

According to Art. 150 of the Civil Code of the Russian Federation, life and health, personal dignity, privacy, personal and family secrets, other personal non-property rights and other intangible benefits belonging to a citizen from birth or by virtue of law are inalienable and inalienable in any other way.

According to Art. 151 of the Civil Code of the Russian Federation, if a citizen has suffered moral harm (physical or mental suffering) by actions that violate his personal non-property rights or encroach on other intangible benefits belonging to the citizen, the court may impose on the violator the obligation of monetary compensation for this harm.

In this case, it should be remembered that according to Art. 1068 of the Civil Code of the Russian Federation, a legal entity compensates for harm caused by its employee in the performance of labor (official, official) duties, i.e. monetary compensation to the patient will be paid not by the person who caused the harm, but by the organization in which he works.

Thus, responsibility for violation of medical secrecy is borne both by the person who committed such a violation (disciplinary, administrative or criminal liability) and the medical institution itself (civil liability).

Given the above, it must be emphasized that the heads of medical institutions should remember the need to preserve medical secrecy and the grounds that give the legal right to disclose it, as well as bring this information to the attention of all employees subordinate to them, from specialist doctors to registrars, because ... preservation of medical confidentiality is a legal obligation and a moral duty of every employee of a medical institution.

E.I. Mukhitova,

legal consultant

It is difficult to argue with the fact that a doctor is not just a profession, but also a vocation. In addition to being responsible for helping the person recover, they also need to cheer and support the person. Medical secrecy is the duty of every physician. This means that information about the patient's health must be kept in strict confidence. Otherwise, the doctor faces not only a reprimand, but in some cases also criminal punishment.

First you need to understand what medical secrecy is. This concept should be understood as a ban on the transfer of information about the patient's health, his treatment and further prospects for recovery. By violating this prohibition, a physician runs the risk of being brought to administrative or criminal liability.

Attention! Not only the doctor, but also the rest of the medical staff and relatives should not tell strangers about a person's health. That is why the concept of "medical confidentiality" is used in a narrow sense. Most likely, data nondisclosure should be discussed in the context of medical secrecy.

The following data cannot be disclosed:

the reason for contacting a medical institution, the results of the studies carried out, the diagnosis and information about the prescribed treatment;
the patient's mental state, whether he has disorders and whether he is registered;
the results of analyzes of persons who enter into a marriage union;
whether the patient went to a specific medical facility and whether any procedures were carried out.

Important! Information about a patient who is no longer alive should also not be disclosed.

Article 137 of the Criminal Code of the Russian Federation

Disclosure of medical secrets, article 137 of the Criminal Code of the Russian Federation, regulates the safety of patient data. Anyone can write a statement of claim and apply with the document to the investigating authorities. Perhaps this is if the person believes that the physician has transferred data about his health to third parties, and thus his rights as a patient have been violated.

Currently, there are several types of punishments under the above article in case of violation of the current legislation. By a court decision, the accused may be fined from 100 to 300 thousand rubles. Penalties can be calculated by adding up the physician's salary for the last 12 (24) months.

The medical secrecy clause also provides for punishment in the form of removal from office and a ban on continuing medical activities. The time span is from 2 to 5 years. There are cases when a doctor can be arrested and subsequently even imprisoned for up to 4 years.

Object and objective side of the crime

The disclosure of medical confidentiality is considered a crime against the person. The object in this case is relations in society, which ensure the safety of the personal data of a citizen, his family and private secrets.

Violation of medical confidentiality has its objective side, which is expressed in the following actions:

Collection of data and personal information about a person that is his personal or family secret without his permission.
Disclosure of the received data via the Internet, television or in a public speech.

It is illegal to act when an unauthorized person collects data about a citizen, which is his personal or family secret.

Subject and subjective side

It is worth saying that the corpus delicti has a formal side. The end of the crime occurs after one or more of the above actions have been committed.

The subjective side of the disclosure of medical secrets is guilt in the form of direct intent. The accused is aware of what he is doing, understands the degree of social danger and deliberately goes to the crime. The subject can be considered a sane person, whose age at the time of the commission of the crime must be more than 16 years.

Punishment for disclosing medical confidentiality

Medical secrecy is information that is not subject to disclosure. Persons who have information about the patient and have passed it on to third parties can be punished.

Responsibility for disclosing medical confidentiality is expressed in the following types of punishments:

Disciplinary. A citizen who has violated the law is reprimanded. If a person's actions have entailed serious consequences, he is threatened with dismissal.
Civil law. Such punishment is understood as reimbursement to the patient for the harm that was caused to him. The decision is made by one of the judicial authorities, which received the appeal from the victim.
Administrative. In case of violation of the law, an ordinary person will have to pay a fine of up to 1,000 rubles, but for officials there are penalties of up to 5,000 rubles.
Criminal punishment for divulging medical secrets. When instituting a criminal case, the court may order the payment of a fine to the victim from 100 to 300 thousand rubles, impose a ban on continuing medical activities from 2 to 5 years, oblige him to forced labor for up to four years, arrest for up to 6 months, and imprison up to four years.

Of course, each patient is interested in the question of how to prove his case and punish the offender. Unfortunately, very often doctors forget about the concept of medical secrecy and share information about the patient's health with his relatives, although the person himself did not give consent to this. Moreover, doctors do not even ask the so-called relatives for documents that would be able to confirm the degree of kinship. Thus, it turns out that the secret becomes available to a wide range of people.

Attention! Quite often, the medical staff shares information about the health of a citizen with their colleagues. At the same time, we are not talking about some kind of meeting - just an ordinary conversation over a cup of tea.

In most cases, the patient is not even aware of the disclosure of the secret. It is worth saying that if the patient becomes aware of this fact, then it is quite difficult to prove that his rights have been violated. In order for the accusation to be substantiated, it is necessary to have on hand evidence in writing and at least one witness. If there are any, you can safely contact the judicial authorities. During the examination of the case, the judge will impose a sentence.

An example is a case that occurred not so long ago in the city of St. Petersburg. Before the flight, citizen Ivanov felt unwell, and while still at home, he turned to one of the private clinics. The arriving doctor, despite the patient's poor health, allowed the flight. During the landing, Ivanov felt bad, and as a result, he had a heart attack.

Subsequently, the citizen filed a lawsuit against the clinic and the doctor, who allowed the flight, knowing that the patient had hypertension. Compliance with medical confidentiality was violated by the general director of the medical institution. In response to Ivanov's lawsuit, he sent a letter to the association of private clinics with a request to speak out against the lawyer who defended the victim. At the same time, the head attached data on the health of the plaintiff in writing. The court found the director guilty and sentenced him to a fine of 30 thousand rubles.

Output

Disclosing secrets about a patient's health brings no less negative than, for example, failure to provide qualified medical care.

Circumstances under which the disclosure of information constituting a medical secret is allowed

Information constituting a medical secret, the disclosure of which is not allowed, including after the death of a citizen, includes (parts 1, 2 of article 13 of the Law of 21.11.2011 N 323-FZ):

information about the fact of a citizen's appeal for medical assistance;
information about the state of health and diagnosis of the citizen;
other information obtained during medical examination and treatment of a citizen.

A medical organization is obliged to observe medical secrecy in all cases until the citizen or his legal representative has given written consent to transfer this information to other persons (clause 4 of part 1 of article 79, part 3 of article 13 of Law N 323-FZ).

1. Bringing to responsibility for violation of medical confidentiality

The occurrence of responsibility and the method of protecting the rights of a citizen for the unlawful disclosure of information constituting a medical secret will depend on the circumstances of the case.

1.1. Bringing to civil liability

A citizen has the right to pre-trial appeal to a medical organization and employees who allowed the disclosure of medical secrets, with a claim (claim) for compensation for harm (including moral). In addition, a citizen has the right to file a statement of claim in court.

Note: Depending on the circumstances of the case and the position chosen, the requirements may be based, inter alia, on Art. Art. 15, 150, 151, 1064, 1068, 1099, 1101 of the Civil Code of the Russian Federation and legislation on the protection of consumer rights and personal data.

1.2. Bringing to administrative responsibility

A citizen has the right to apply to the prosecutor with a statement to initiate an administrative offense case in connection with the disclosure of information with limited access (Article 13.14, Part 1, Article 28.4 of the Administrative Code of the Russian Federation).

1.3. Criminal proceedings

A citizen has the right to apply to the Investigative Committee of the Russian Federation with a statement to initiate a criminal case on the grounds of a crime in connection with violation of privacy (Art.

Medical secrecy. Disclosure of medical confidentiality without the consent of the patient.

137 of the Criminal Code of the Russian Federation; nn. a paragraph 2 of Art. 151 of the Criminal Procedure Code of the Russian Federation).

There are exceptions in which the provision of information constituting a medical secret without the consent of a citizen or his legal representative is allowed, in particular (part 4 of article 13 of Law N 323-FZ):

for examination and treatment of a citizen who, as a result of his condition, is not able to express his will;
with the threat of the spread of infectious diseases, mass poisoning and injuries;
when providing medical assistance to a minor patient with drug addiction to inform parents (legal representative);
to inform the internal affairs bodies about the admission of a patient in respect of whom there are sufficient grounds to believe that harm to his health was caused as a result of unlawful actions;
when investigating an industrial accident;
for accounting and control in the compulsory social insurance system.

In addition, in case of an unfavorable prognosis of the development of the disease, it is allowed to disclose medical secrets to a spouse, one of close relatives (children, parents, adopted children, adoptive parents, siblings, grandchildren, grandfathers, grandmothers), if the patient has not forbidden to inform them about this and (or) did not determine another person to whom such information should be transferred (part 3 of article 22 of Law N 323-FZ).

The disclosure of medical secrets is also possible when issuing an opinion on the cause of death and diagnosis of the disease to the following persons: a spouse, a close relative, and in their absence, other relatives or the legal representative of the deceased (part 5 of article 67 of Law N 323-FZ).

Information constituting a medical secret, the disclosure of which is not allowed, including after the death of a citizen, includes (parts 1, 2 of article 13 of the Law of 21.11.2011 N 323-FZ):

information about the fact of a citizen's appeal for medical assistance;
information about the state of health and diagnosis of the citizen;
other information obtained during medical examination and treatment of a citizen.

Disclosure of medical confidentiality

Bringing to responsibility for violation of medical confidentiality

1.1. Bringing to civil liability

1.2. Bringing to administrative responsibility

1.3. Criminal proceedings

A citizen has the right to apply to the Investigative Committee of the Russian Federation with a statement to initiate a criminal case on the grounds of a crime in connection with a violation of privacy (Article 137 of the Criminal Code of the Russian Federation; subparagraphs and paragraph 2 of Article 151 of the Criminal Procedure Code of the Russian Federation).

2. Circumstances under which the disclosure of information constituting a medical secret is allowed

for examination and treatment of a citizen who, as a result of his condition, is not able to express his will;
with the threat of the spread of infectious diseases, mass poisoning and injuries;
when providing medical assistance to a minor patient with drug addiction to inform parents (legal representative);
to inform the internal affairs bodies about the admission of a patient in respect of whom there are sufficient grounds to believe that harm to his health was caused as a result of unlawful actions;
when investigating an industrial accident;
for accounting and control in the compulsory social insurance system.

Information constituting a medical secret, the disclosure of which is not allowed, including after the death of a citizen, includes (parts 1, 2 of article 13 of the Law of 21.11.2011 N 323-FZ):

information about the fact of a citizen's appeal for medical assistance;
information about the state of health and diagnosis of the citizen;
other information obtained during medical examination and treatment of a citizen.

1. Bringing to responsibility for violation of medical confidentiality

1.1. Bringing to civil liability

Note: Depending on the circumstances of the case and the position chosen, the requirements may be based, inter alia, on Art.

Disclosure of medical confidentiality: criminal liability and penalties

Art. 15, 150, 151, 1064, 1068, 1099, 1101 of the Civil Code of the Russian Federation and legislation on the protection of consumer rights and personal data.

1.2. Bringing to administrative responsibility

1.3. Criminal proceedings

2. Circumstances under which the disclosure of information constituting a medical secret is allowed

for examination and treatment of a citizen who, as a result of his condition, is not able to express his will;
with the threat of the spread of infectious diseases, mass poisoning and injuries;
when providing medical assistance to a minor patient with drug addiction to inform parents (legal representative);
to inform the internal affairs bodies about the admission of a patient in respect of whom there are sufficient grounds to believe that harm to his health was caused as a result of unlawful actions;
when investigating an industrial accident;
for accounting and control in the compulsory social insurance system.

Information constituting a medical secret, the disclosure of which is not allowed, including after the death of a citizen, includes (parts 1, 2 of article 13 of the Law of 21.11.2011 N 323-FZ):

information about the fact of a citizen's appeal for medical assistance;
information about the state of health and diagnosis of the citizen;
other information obtained during medical examination and treatment of a citizen.

1. Bringing to responsibility for violation of medical confidentiality

1.1. Bringing to civil liability

1.2. Bringing to administrative responsibility

1.3. Criminal proceedings

2. Circumstances under which the disclosure of information constituting a medical secret is allowed

There are exceptions in which the provision of information constituting a medical secret without the consent of a citizen or his legal representative is allowed, in particular (Art.

What is the responsibility for violation of medical confidentiality?

4 tbsp. 13 of Law N 323-FZ):

for examination and treatment of a citizen who, as a result of his condition, is not able to express his will;
with the threat of the spread of infectious diseases, mass poisoning and injuries;
when providing medical assistance to a minor patient with drug addiction to inform parents (legal representative);
to inform the internal affairs bodies about the admission of a patient in respect of whom there are sufficient grounds to believe that harm to his health was caused as a result of unlawful actions;
when investigating an industrial accident;
for accounting and control in the compulsory social insurance system.

Article 13. Compliance with medical confidentiality

Disclosing medical secrets or why the doctor does not tell me what is the diagnosis of my beloved mother-in-law

Information about the fact of a citizen's appeal for medical assistance, his state of health and diagnosis, and other information obtained during his medical examination and treatment constitutes a medical secret.

2. It is not allowed to disclose information constituting a medical secret, including after the death of a person, by persons to whom they became known during training, performance of labor, official, official and other duties, with the exception of cases established by parts 3 and 4 of this article.

3.With the written consent of a citizen or his legal representative, it is allowed to disclose information constituting a medical secret to 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.

4. The provision of information constituting a medical secret without the consent of a citizen or his legal representative is allowed:

1) for the purpose of medical examination and treatment of a citizen who, as a result of his condition, is unable to express his will, taking into account the provisions of Clause 1 of Part 9 of Article 20 of this Federal Law;

2) with the threat of the spread of infectious diseases, mass poisoning and injuries;

3) at the request of the bodies of inquiry and investigation, the court in connection with the conduct of an investigation or trial, at the request of the bodies of the prosecutor's office in connection with the exercise of prosecutorial supervision by them, at the request of the body of the penal system in connection with the execution of criminal punishment and the exercise of control over behavior conditionally a convicted person, a convict in respect of whom the serving of the sentence has been postponed, and a person released on parole;

Information about changes:

Federal Law No. 230-FZ of July 13, 2015 supplemented Part 4 of Article 13 of this Federal Law with Clause 3.1

3.1) for the purpose of exercising by authorized federal executive bodies of control over the execution by persons recognized as drug addicts or using narcotic drugs or psychotropic substances without a doctor's prescription or new potentially dangerous psychoactive substances, imposed on them when imposing an administrative punishment by a court of the obligation to undergo drug addiction treatment, diagnostics , preventive measures and (or) medical rehabilitation;

4) in the event of medical assistance to a minor in accordance with Clause 2 of Part 2 of Article 20 of this Federal Law, as well as to a minor under the age established by Part 2 of Article 54 of this Federal Law, to inform one of his parents or other legal representative;

5) in order to inform the internal affairs bodies about the admission of a patient in respect of whom there are sufficient grounds to believe that harm to his health was caused as a result of unlawful actions;

6) in order to conduct a military medical examination at the request of military commissariats, personnel services and military medical (medical flight) commissions of federal executive bodies and federal state bodies, in which the federal law provides for military and service equivalent to it;

7) for the purpose of investigating an industrial accident and occupational disease, as well as an accident with a student during his stay in an organization carrying out educational activities, and in accordance with part 6 of article 34.1 of the Federal Law of December 4, 2007 N 329-FZ "On physical culture and sports in the Russian Federation "an accident with a person undergoing sports training and not having an employment relationship with a physical culture and sports organization that does not carry out sports training and is a customer of sports training services, while such a person undergoes sports training in an organization, carrying out sports training, including during his participation in sports competitions, provided for by the implemented sports training programs;

8) when exchanging information by medical organizations, including those posted in medical information systems, in order to provide medical care, taking into account the requirements of the legislation of the Russian Federation on personal data;

9) for the purpose of accounting and control in the compulsory social insurance system;

10) in order to control the quality and safety of medical activities in accordance with this Federal Law;

The concept of "medical confidentiality" includes those information about patients that are prohibited from disclosing to employees of medical institutions.

Let's try to figure out what exactly can be considered such information? In what cases can such information still be communicated to the patient's relatives or generally to third parties? And what liability is provided for violation of this very medical confidentiality?

Table of contents:

What is this - "medical confidentiality"

The essence of the law on medical secrecy is that medical professionals have no right to disclose information that has become known to them in the process of examining and treating a patient. Meanwhile, violations of this provision occur quite often today. At the same time, neither health workers, nor patients, nor their relatives, nor third parties even think about the fact that a crime is being committed.

It will be clearer to explain the situation with an example:

Let us assume that the relatives of patient M., who is being treated in a hospital, ask his doctor L. about the patient's condition. And the doctor, without any hesitation, begins to narrate in detail about the patient's health, talk about his analyzes, show pictures, etc. At the same time, the health worker somehow "forgets" to ask the patient's opinion. It does not even occur to the doctor that by reliably answering the questions of his relatives, he is breaking the law.

Or another example:

The grandmother, visiting her grandson in the hospital, asks the doctor about the child's well-being. And if the doctor begins to describe in detail to her the condition and diagnosis of the little patient, without obtaining the consent of the parents / guardians of the latter, he also oversteps the legal line. Since it is the parents (as well as guardians) who are the legal representatives of minors.

Information constituting a medical secret

What information exactly constitutes the notorious "medical secret". The list of them is determined by the Federal Law No. 323 dated November 21, 2011 "On the basics of protecting the health of citizens in the Russian Federation." According to this document, medical secrets are:

Important: most of the above should be kept secret by medical workers after the death of the patient.

When can patient information be shared with others?

The concept of "medical confidentiality" is often used in various medical documents. Although it is not entirely accurate in meaning. Since all medical professionals, and not just doctors, are obliged by law to keep secrets related to the patient's personality and state of health. Therefore, it would be more accurate to operate with the expression "medical secret". However, a more established expression is commonly used.

Medical secrets can be transferred to third parties, but in cases strictly stipulated in the law.

With the consent of the patient, information about him and his condition can be provided:

for scientific research;
or for educational purposes.

Without the patient's consent:

when examining a person who is not able to express his will;
to prevent the spread of an infectious disease;
in the Department of Internal Affairs (on the fact of beating, inflicting bodily harm, etc.);
when investigating an accident at work or in an educational institution;
when exchanging information between medical institutions;
to control the quality of medical care;
at the request of the military registration and enlistment office, as well as the investigation, the prosecutor's office, the court.

Can information about a patient be shared with his relatives?

Information about the patient is legally allowed to be reported to relatives only in some cases:

when it comes to a minor under the age of 15 (to parents and guardians, as well as other relatives with the consent of the parents and guardians);
in case of an unfavorable prognosis of the development and outcome of the disease (to a spouse or other close person, in a delicate form and only if the patient is not prohibited from disclosing this kind of information).

Thus, if the prognosis of the disease is good, it is possible to communicate this to relatives and friends only with the consent of the patient. No other way.

Important: if a minor citizen is over 15 years old, he independently receives information from health workers about his state of health. And it gives permission for such a notification to parents or guardians. And without such permission, according to the law, relatives cannot be told anything. This would be a violation of applicable law.

There is one more thing that gives relatives access to a person's medical history. This is the death of the patient. In the event of a lethal outcome, a close relative (or not too close, if there are no relatives) of a deceased patient is issued a medical report, which contains both the official diagnosis and the cause of death.

What measures are provided by law to maintain medical secrecy?

The obligation not to disclose information about a patient under the medical secrecy law is assigned to a certain circle of officials, which includes:

doctors;
registry staff;
nursing staff;
nurses;
pharmacists;
medical students undergoing / undergoing internship in hospitals;
persons who were legally provided with information from medical institutions (investigators, judges, prosecutors, employees of military enlistment offices, etc.)

Responsibility for disclosing medical secrets

If these persons nevertheless allow themselves to disclose information constituting a medical secret, they face the following types of liability:

Disciplinary. Within the framework of which a reprimand or reprimand is pronounced, and in the most "peak" cases, an employee may even be dismissed from his place of work.
Administrative (Article 13.14 of the Code of Administrative Offenses of the Russian Federation). It provides for penalties of up to 1,000 rubles. And if we are talking about the heads of a medical institution, the fine can be increased to 5,000 rubles.
Civil law. When it occurs, the patient is obligatorily paid by the guilty persons compensation for the moral and material harm caused as a result of disclosure.
Criminal (part 2 of article 137 of the Criminal Code of the Russian Federation). It provides for punishment for "disseminating information about a person that constitutes his personal or family secret, using his official position." And the punishment is serious - up to 5 years of real imprisonment.

The law also establishes a number of rules that help keep patient information confidential:

When preparing various documents, medical institutions use seals and stamps that do not even hint at the profile of the organization. For example, the seal of the "Smolensk Psychiatric Dispensary No. 3" contains only the "shortened" name of the institution - "Smolensk Dispensary No. 3".
When drawing up a sick leave, the document indicates only the general reason for which the patient was disabled. In a special column, the exact diagnosis is not written, but only the words "injury" or "disease". True, at the request of a citizen, a real diagnosis in the BC can be indicated.