Commented by Yulia Vykhrovska, associate at Legal Alliance Company
Lawyer and Law
An adult patient is in coma after a traffic accident. His parents want to obtain information from the medical chart and X-ray images to consult with other experts additionally. However, the hospital does not provide the information based on medical secret. Are such actions of the hospital legal?
Everyone has the right to confidentiality of his health condition, the fact of asking for medical aid, diagnosis and information obtained at medical examination in accordance with Article 391 of the Law of Ukraine “Fundamental Healthcare Law Provisions” and Article 286(1) of the Civil Code of Ukraine.
Additional guarantees of non-disclosure of identity information are enshrined in the Constitution of Ukraine, the Law of Ukraine „On Information“, the Law of Ukraine „On Personal Data Protection“ and in other regulatory acts.
Article 40 of the Fundamental Law Provisions stipulates an obligation to keep medical secret: healthcare professionals and other persons who while performing their professional duties became aware of a disease, examination and results thereof, sexual and family life of a person cannot disclose this information except for in case provided by law.
For example, information about treatment of a person in an addiction clinic can be provided to law enforcement agencies in case this person is brought to criminal or administrative liability (Article 14 of the Law of Ukraine “On Measures of Counteracting Illegal Circulation of Narcotic Drugs, Psychotropic Substances and Precursors and their Abuse”). Also, such cases cover disclosure of information at releasing a person having tuberculosis from a prison. The prison where the person served his sentence must report the clinical and dispensary category of the disease to the appropriate anti-tuberculosis institution (Article 18 of the Law of Ukraine "On Counteracting the Tuberculosis").
However, the legislation does not stipulate the right to disclose information on health state of an adult legally capable person who is unconscious, in particular to his parents or legal representatives.
To understand peculiarities of governing such legal relations we can look at general rules on classified information and at Decision of the Constitutional Court of Ukraine No. 5-зп as of November 30th, 1997 in a case on official interpretation of articles 3, 23, 31, 47 and 48 of the Law of Ukraine “On Information” and Article 12 of the Law of Ukraine “On Prosecutor’s Office” (case of K. G. Ustymenko No. 18 / 203-97).
First, general rules (Article 32(2) of the Constitution of Ukraine, Article 11(2) of the Law of Ukraine “On Information”) do not allow collection, storage, use and dissemination of confidential information about a person without his consent, except for cases specified by law and only for the benefit of national security, economic welfare and human rights.
Second, the Constitutional Court in its abovementioned decision refers to Article 39 of the then effective Fundamental Healthcare Law Provisions based on which a doctor must inform a patient’s family members or legal representative if the patient is unconscious. Today this article does not contain such provisions anymore.
Under Article 285(2) of the Civil Code of Ukraine and Article 39(2) of the Fundamental Healthcare Law Provisions, parents (adoptive parents) and a guardian have the right to obtain information of health state of a child or a person under guardianship. Provision of this information to parents of an adult person, including if a person is unconscious, is not governed by law.
Regarding little case law on this issue (including Decision of the Constitutional Court of Ukraine 5-зп as of November 30th, 1997), it contains only general principles of a person’s access to information about himself only. Court’s position in this decision does not describe cases of medical secret disclosure.
Thus, one of the existing grounds cannot be considered sufficient to disclose information on a patient’s health state. Today the legislation does not oblige a doctor to provide information on health state of an adult legally capable person to his parents. Article 39(2) of the Fundamental Healthcare Law Provisions and Article 285(2) of the Civil Code of Ukraine prescribe the right of parents to obtain such information only about a child.
Although in this case there is no direct obligation to provide information, it should be considered that a patient’s condition does not let him grant permission to disclose this information or make any decision regarding his health condition at all.
For the patient to get proper medical aid, the situation requires discussing between his physician and parents or other legal representatives. Based on this, the physician may make a decision on granting or refusal to grant information on the health condition of a patient who is unconscious to his parents.
Notwithstanding lack of regulation of the legal relations and actual necessity to disclose medical secret in such situations, legislation, in particular Article 39 of the Fundamental Healthcare Law Provisions of Ukraine must be reviewed and amended respectively.
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