Medical confidentiality is widely recognised as a concept worth protecting.
Problems arise, however, when medical confidentiality conflicts with interests that
are equally regarded as important, such as the interests of justice; the interest in
criminal prosecution; the interest in crime prevention; or defence rights. In order to
develop convincing and workable criteria to balance the competing interests in case
of a conflict, the different interests at stake must be clearly defined, and their
respective importance assessed. Different ethical approaches to the balancing
process will be introduced, followed by an analysis of the law of four legal systems,
France, Germany, the UK and the u.s.
AIl four legal systems protect medical confidentiality by the means of private law,
but only Germany and the U.S. protect medical confidentiality as part of the
constitutional right to privacy. In France and Germany, a breach of medical
confidentiality by a physician amounts to a criminal offence. Regardless of these
differences, all systems agree that medical confidentiality serves both the privacy
interests of the patient, and the public interest in protecting public health.
Fundamental differences materialise with regard to the recognition of medical
privilege, which is recognised in France, Germany, and some States in the U.S., but
is rejected by other States in the U.S. and by the UK. While in the U.S., defence
rights are regarded as more important than medical confidentiality, the same is not
true for France and Germany. All systems agree that medical confidentiality can be
outweighed by the interest in preventing a crime that might cause serious harm to a
third party, but the criteria according to which the competing interests are
balanced, differ.
Based on a comparison of the different approaches, criteria for a consistent and
morally justified resolution of the conflicts between medical confidentiality and the
competing interests will be suggested.