Medical professional secrecy and confidentiality have a long-standing legal and ethical tradition, with confidentiality considered a crucial condition for the medical and patient relationship in the Hippocratic Oath. The duty of medical confidentiality has also been protected by different international medical instruments, including the Geneva Declaration, the International Code of Medical Ethics, the Universal Declaration of Bioethics and Human Rights, among others. Medical professional secrecy is also related to other medical duties, such as the duty of loyalty, certainty, good faith, integrity, and diligence.
The breach of confidentiality in the context of sexual and reproductive health has a stronger impact on trust between doctors and patients. The expectation of confidentiality in these types of services is higher, since it requires intimate information from patients, which can often generate situations of stigma that produce discrimination. With this in mind, we will analyze the confidentiality standards set by the Inter-American Court of Human Rights (IAHR Court) in the case of Manuela v. El Salvador. Then, we will highlight how Brazil offers valuable lessons learned for other countries in Latin America to ensure that medical confidentiality upholds and guarantees reproductive rights.
How Is the Right to Professional Secrecy in the Abortion Context Protected by the Interamerican System?
The element of acceptability of the right to health requires that the provision of health services is respectful of medical ethics. The IAHR Court has also highlighted the legal importance of the ethical conditions under which health services must be provided. By virtue of the rights to privacy and to health, every person has the right to confidentiality of medical care and to have their health data protected, just as the IAHR Court ruled in its decision, Manuela v. El Salvador. In Manuela, the doctor who had treated Manuela’s obstetric emergency filed an abortion criminal complaint against Manuela, and testified against her. Additionally, medical authorities shared Manuela’s medical file with criminal prosecution authorities. The IAHR Court stated that this conduct infringed on Manuela’s rights and that sharing this type of information restricts access to the provision of adequate healthcare.
This right implies that the information obtained by medical professionals is protected by the doctor-patient privilege, meaning that all the information shared by patients while being treated should not be shared by health care personnel. The information protected includes physical evidence that health care personnel observe, medical records, oral, or written communications between patients or people that act on their behalf and health care professionals, among others.
Only under very specific and limited circumstances can the right to confidentiality of medical care be restricted by states. According to the IAHR Court, this can only occur if an encroachment is not abusive or arbitrary, and it is established in law; it pursues a legitimate purpose; it is necessary in a democratic society and follows the proportionality principle as developed by the IAHR Court jurisprudence. Under certain legal frameworks, health care professionals may have a duty to report the crimes they become aware of due to the information they may have access to while performing their work. This duty to report constitutes an infringement to confidentiality that, to be according to the standards set in Manuela, should comply with the requirements above-mentioned.
One of the exceptions to the right of confidentiality is a concurring legal duty to disclose the information known by professionals, such as health care personnel. In the specific context of criminalization of abortion, a duty to report abortions or related crimes infringes the right to confidentiality of health data. This infringement has particularly severe consequences in cases of obstetric emergencies, where women’s lives are at risk. Because of this, the IAHR Court decided that doctor-patient privilege and confidentiality of health information should prevail over the duty to report when dealing with obstetric emergencies.
The problem reflected in El Salvador is also a concern in other Latin American countries and the existence of ambiguous exceptions to the protection of medical information in contexts of abortions or obstetric emergencies often triggers criminalization. In certain countries, not only are the legal frameworks ambiguous, but health professionals also face the conundrum of complying with their duty to maintain the confidentiality of the information they receive while exercising their profession, or facing charges for failing to file a criminal report. In countries like Peru, there is a legal obligation in the General Health Law for physicians to report when they detect signs of abortion. Uruguay, Chile, and Argentina have more favorable legal contexts for abortion and protection of medical professional secrecy, yet medical confidentiality is frequently violated, with professionals often reporting abortions and obstetric emergencies to criminal authorities.
The Case of Brazil
In Brazil, where abortion is considered a crime if it is not covered by one of three exceptions (risk of life to the pregnant person, if the pregnancy is a result of sexual abuse, or when the fetus is anencephalic), the professional secrecy regulation has practical problems that increase the fear among women and pregnant people to seek medical support when they decide to voluntarily interrupt their pregnancies. The Brazilian norms on professional secrecy are safeguarded by the Medical Ethical Code, the Brazilian Criminal Code that defines violating professional secrecy as a crime, and the Brazilian Criminal Procedure Code that prohibits professional testimony when it would violate professional secrecy. However, what happens in practice differs from these regulations. In 2018, the Public Defender Office from Rio de Janeiro found that hospitals and medical centers are the primary sources of reported abortion cases brought before the judicial authorities and the most vulnerable people are more likely to face criminalization.
In March 2023, the Superior Court of Justice of Brazil (the “Court”) published a decision involving a woman prosecuted for a self-provided abortion in 2014 due to a medical professional secrecy violation. In this case, the doctor reported the supposed crime of abortion to the police, served as a witness during the criminal procedure hearing, and submitted the patient’s medical records. The Public Defender Office of Minas Gerais then filed an habeas corpus to the Court asking to declare the abortion crime unconstitutional and close the criminal case.
The Court considered that it had no jurisdiction to decide on the unconstitutionality of the crime, but ruled that the doctor violated professional secrecy — nullifying the criminal proof, according to the Brazilian Criminal Procedure Code. The Court applied the “fruit of the poisonous tree” theory, stating that the “the criminal action is contaminated by the elements of information collected in an illicit way, and therefore it must be closed.” As a result of these violations, the Court ordered the procedure to be forwarded to the Regional Council of Medicine and to the Prosecutor Office of Minas Gerais to investigate the doctor’s conduct.
Although the decision’s effects are limited, it establishes an important precedent on professional secrecy. The decision’s legal reasoning took into consideration two main rules about this subject: (i) the Brazilian Medical Ethical Code and the duty not to break professional secrecy in the case of a patient under criminal investigation or prosecution; and (ii) the constitutional right to intimacy and private life under the Brazilian Federal Constitution. While it was considered that medical professional secrecy is not an absolute right, the Court reasoned that the patient was seeking medical help, and the doctor’s attitude was not a reasonable response. Even in the cases where the doctor must communicate certain diagnoses and public health related information as a legal obligation, they are prohibited from sharing patients’ records and revealing confidential information that can expose the person to a criminal prosecution.
Even though medical secrecy is protected by strong human rights standards, what actually happens in practice differs greatly. Medical professionals frequently disregard confidentiality or find themselves forced to break their ethical responsibilities in criminalization contexts. Thus, reasoning like the recent decision of the Superior Court of Justice of Brazil should be considered a good standard for the region to adopt and implement. As we have seen, even the adoption of good standards, however, may be insufficient without a commitment to implementation. Therefore, countries must improve training for health professionals, police, and administrative professionals on upholding such legal standards.