- Access to the medical records of deceased persons may not be denied solely on the grounds of post-mortem privacy protection.
- Data protection laws also apply to the personal data of deceased persons; cantonal law has a legal loophole in this respect.
- Requests for access must be granted if the applicant can prove a legitimate interest and there are no overriding public or private interests to the contrary.
- Full access to original files is not proportionate due to medical confidentiality; disclosure to an intermediary medical confidant is permissible.
Issuance of medical records.
– The requested access to the medical records cannot be denied on grounds of the post-mortem protection of the personality of the deceased person (recital 2).
– The relevant data protection laws are also applicable to the processing of personal data of a deceased person (Rec. 3).
– With regard to the right to inspect personal files of deceased persons, there is no general regulation in cantonal law; in this respect, there is a genuine gap in the law (rec. 4a‑c).
– Requests for access to the medical records of deceased persons shall be complied with if the applicants demonstrate an interest in the information or accessThe applications are not opposed by any special legal provisions or overriding public or private interests (Rec. 4d).
– In view of the paramount importance of the protection of medical secrecy under criminal law, full inspection of the original files of the deceased person is not to be permitted; it proves to be proportional to Files only of a mediating medical confidant on behalf of the relatives for their orientation to be issued under condition (Rec. 4e).
The comments on medical confidentiality and the balancing against the disclosure interests of relatives are interesting:
It is recognized in doctrine and case law that close relatives of a person who has been killed may have an independent claim for satisfaction (Art. 47 of the Swiss Code of Obligations of March 30, 1911 (OR); Roland Brehm, Berner Kommentar, 2nd edition, Bern 1998, Art. 47 N 31 f., N 141 ff., each with references). In this sense the complainants have a legitimate interest in knowing the particular circumstances of the death of their relative in order to be able to clarify and enforce the basis for a possible claim under liability law. Since after the death of R.M. the only possibility to obtain knowledge of these circumstances is the release of the doctors of the IPD from medical secrecy by the supervisory authority, the principle of subsidiarity is respected. The complainants’ interest in disclosure, however, is outweighed by the Confidentiality interest regarding information about the deceased R.M.. A review of the medical records shows that they contain highly personal data of R.M. which are particularly worthy of protection and which were entrusted to the physicians in the course of treatment or which they had performed in the exercise of their profession. In particular, these documents also contain confidential information concerning the relationship between the deceased and his relatives. It cannot therefore be assumed without further ado that a person, even if he or she was closely associated with close relatives, would have allowed his or her medical dossier to be fully and unrestrictedly accessible to them solely on the basis of this circumstance (decision of the II Public Law Division of the Federal Supreme Court of 26 April 1995 i.S. X c. Spital von P. u. Staatsrat des Kantons Genf, in: Pra 85 No. 94 p. 294). The complainants are certainly able to assert a superior interest in the disclosure of data in the medical records that outweighs the interest in secrecy, insofar as these data are factually related to the basis of liability and their knowledge is necessary to clarify the chances of litigation and to enforce the claim.. They are quite right that their interests would be taken into account in a more optimal way if they themselves could inspect the medical records to the full extent. However, in view of the paramount importance of the protection of medical secrecy under criminal law, the full inspection of the original files requested by them must not be permitted; all the more so as this is not absolutely necessary in the present case.. For the contested decision of the lower court to release the files only to a mediating medical confidant on behalf of the complainants for their orientation, subject to a condition, does adequate justice both to the interest – serving above all the professional performance of the medical professions – in the non-dissemination of highly personal facts entrusted to the medical persons in the context of their professional functions, and to that of the complainants to obtain knowledge of the relevant facts giving rise to the claim, and therefore complies with the principle of proportionality. Such a regulation has proven itself especially with regard to medical information and allows for a balanced solution to the conflict of interest at hand (decision of the II Public Law Division of the Federal Supreme Court of April 26, 1995 i.S. X c. Spital von P. u. Staatsrat des Kantons Genf, in: Pra 85 No. 94 p. 294; ZBl 91/1990 p. 364). Thus, Art. 8 para. 3 FADP stipulates that the owner of a data file may have data relating to the health of the data subject communicated by a physician designated by him or her.
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