The physician is obliged to maintain confidentiality towards every other person except of the patient. The duty of confidentiality also applies to spouses, partners, adult children or other relatives of the patient. However, at any time patients can release the doctor from the duty to confidentiality and thereby allow him/her to inform persons of their choice (persons in a position of trust to the patient).
In connection with asylum seekers particular care must be taken to ensure that he/she releases the doctor from the duty of confidentiality towards the so-called lay interpreters (e.g. relatives, strangers from the waiting room, other non-medical staff), in case these persons are used as language mediators.
Additionally, special attention has to be paid to the question if the person who was brought along should actually get to know about sensitive health data, this applies especially to migrants, who come from patriarchal structures.
In general, also children and young people have a right to confidentiality. This can in fact be in conflict with the right to parental custody, which includes the right to information. In terms of the question of duty to confidentiality it is decisive that a minor person is judicious and possesses the cognitive faculty. If this is the case then a minor is capable to give consent to a treatment himself/herself, by which the parents have no right to information. If a child is not judicious and lacks cognitive faculty (assumption: under 14 years), the doctor has to inform the parents.
EXAMPLE: The 15-year-old P has sexual intercourse with her boyfriend. The boyfriends’ parents surprise them and demand that P takes the “morning-after-pill”. After that P suffers from severe stomach pain and receives inpatient treatment in the hospital. P asks the doctors and nursing staff in the hospital not to tell her parents about the treatment. Indeed, P’s father inquires at the hospital why his daughter is treated there. Because P is already judicious and has cognitive faculty the parents have no right to be informed. P could, however, agree that the parents receive information but has on the contrary explicitly asked to not to tell her parents about the treatment. Thus, the doctors and nursing staff are under the duty of confidentiality.
6.1 Obligation to report
A physician is obliged to submit a complaint to the security authorities if, in exercise of his/her profession a suspicion is raised that the death or a severe bodily harm was caused by a judicially punishable act or if an adult, who cannot protect her/his interest was tortured, neglected or sexually abused (Art 54 para 4 ÄrzteG). If an adult was abused, tortured, neglected or sexually abused but as a result only suffers from slight physical injuries or is not injured or harmed health-wise, the physician is not obliged to make a complaint. However, in such a case, physicians have the right to notify personally affected individuals, relevant authorities or public offices (Art 8 para 1 GuKG).
On suspicion that a minor (person under 18 years) was abused, tortured, neglected or sexually abused the physician has the principal obligation to notify and make a complaint. In addition, there is an obligation to immediately and verifiably notify the responsible children and youth welfare authorities.
In exceptional cases (see the listed reasons below) a complaint can be waived as long as it is necessary for the wellbeing of the minor and a cooperation, with the children and youth welfare authority and a child protection facility at a hospital, is established. Whereas the obligation to report to child and youth welfare authorities can never be waived.
A complaint can be waived if:
- the suspicion is raised against a close relative (spouse, registered partner, relative in ascending line, brother, sister or other relatives with which the affected person shares a household Art 166 StGB) and
- if the waving of the complaint is in the interest or the wellbeing of the minor and
- if a cooperation with the youth welfare authorities and if necessary a child protection facility at a hospital is established.
The following table gives you an overview:
|Suspicion of||adult||Minor (0-18)||Adult who cannot protect their interest themselves|
|abuse, torture, neglect and sexual abuse||no obligation to notify/complaint||obligation to notify/complaint to security authority
suspicion raised towards close relatives
secured wellbeing of the minor
obligation to report to children and youth welfare authority
|obligation to notify/complaint to security authority
|severe bodily harm||obligation to notify/complaint to security authority and obligation to inform in the form of reference to victim protection facilities (Art 54 para 6 ÄrzteG; Art 7 para 2 GuKG)||obligation to notify/complaint to security authority
suspicion raised towards a close relative
secured wellbeing of the minor
obligation to report to children and youth welfare authority
|obligation to notify/complaint to security authority and obligation to inform in the form of reference to victim protection facilities (Art 54 para 6 ÄrzteG; Art 7 para 2 GuKG)
|minor personal injuries||no obligation to notify/complaint but right to report to affected persons, authorities or public offices||no obligation to notify/complaint but right to report to affected persons, authorities or public offices||no obligation to notify/complaint but right to report to affected persons, authorities or public offices|
|death caused by a judicially punishable act||complaint to the security authorities||complaint to the security authorities||complaint to the security authorities|
If a physician detects that an abuse was committed, it is unfailingly important that the injury or harm is documented accordingly, so that the abuse can be proven at a possible later court proceeding.
In 2015, the University clinic for Paediatrics and Adolescent Medicine in Vienna started a 2-year pilot project “Forensic children and youth investigation authorities (FOKUS)” dealing with prompt documentation and clarification of injuries on the basis of available and objectified traces in a standardized procedure. As an interdisciplinary facility FOKUS provides support in the prompt (to the time of occurrence) clarification and examination. It includes forensics/securing of evidence, clinical/psychological examination, diagnostics or proposing measures. The website provides questionnaires and check lists which should make a standardized documentation easier, available at: https://kinderklinik.meduniwien.ac.at/forschung/fokus/
The Medical University of Graz has a clinical-forensic investigating body under the Ludwig Boltzmann Institute for Clinical-Forensic Medical Imaging. It is a point of contact for people of all ages who are affected by physical and sexual violence or child abuse. Specially trained physicians offer a forensic examination with a detailed documentation of the injuries as well as forensics/securing of evidence and evaluation of these, if necessary, to the affected persons, further information here. [http://cfi.lbg.ac.at/de/klinisch-forensische-untersuchungsstelle/allgemeine-informationen]
For the documentation of detected injuries of asylum seekers due to abuse by law enforcement agents or during the asylum process the Istanbul Protocol has to be used. It is a United Nations document to effectively investigate and document torture and other cruel, inhuman or degrading treatment or punishment. The Istanbul Protocol set down standards for certain professional groups (physicians, psychologists and layers) for the investigation and documentation of cases, in which persons allege to be tortured or abused. Additionally, it contains guidelines for the examination of cases of alleged torture for the notification of such finding to the justice and other investigating authorities. The Ministry of Health has informed all hospitals in Austria about the Istanbul Protocol in 2015 and requested them to ensure its implementation. The guidelines and references of the Protocol should contribute to an effective assessment and documentation in hospitals and health institutions.
6.2 Excursus: Violence against women and children?
Physicians and caregivers have a key role in the identification of violent acts towards women and children (who are refugees), because they are often the first/ only contact persons.
If the suspicion that a women or child became a victim of violence arises in the course of a medical examination, this needs to be addressed sensitively in a conversation without the presence of accompanying persons. If needed, the conversation has to be carried out with the involvement of female interpreter or a video interpretation transmission. Subsequently the securing of evidence (potentially through evidence protection kits) and a documentation that can be used in court has to be conducted. This shall also include a photographic documentation when there are visible injuries.
In addition to the clinical anamnesis there is also a violence specific anamnesis required to be carried out. If there exist uncertainties on how the documentation should be performed with children the FOCUS – Forensic children and youth investigation authority is available in Vienna (see above). For a standardized, uniform documentation for adults the injury-documentation-questionnaire MEDPOL is recommended (documentation-questionnaire available here) [http://www.bmi.gv.at/cms/BK/buendnis_gegen_/aktuelles/files/Dokumentaionsbogen.pdf] What is also crucial in the medical consultation is to point to the institutions for the protection of victims, counselling services, and other means of protection (prohibition of access, preliminary injunction).
The following institutions for the protection of victims are recommended:
- Intervention agency and centres for violence protection (overview at www.gewaltschutzzentrum.at);
- Helpline for women against violence 0800222555;
- Women’s shelter and women’s emergency hotline (e.g. women’s emergency hotline of the City of Vienna 0171719).