Swiss high court overturns decision to relieve doctors of confidentiality duty

The Swiss federal court overruled the local court. Keystone / Jean-Christophe Bott

The Federal Supreme Court has cancelled a ruling by the canton Schwyz Office for Health and Social Affairs due to serious procedural flaws. This had released hospital doctors from their duty of confidentiality without involving or informing the patient concerned.

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In 2022, a man was undergoing treatment in a clinic in canton Schwyz, where his consumption of child pornography was also discussed. As a result, the cantonal Office for Health and Social Affairs released certain management staff from their duty of medical confidentiality so that they could provide information to the criminal authorities. The clinic then filed a criminal complaint.

However, the patient only learnt of this release from the duty of confidentiality from the files of the criminal investigation. Although his objections were rejected in Schwyz, he has now been proved right in the Federal Supreme Court. He was not included in the proceedings and was not served with the order, it was ruled. This was an “extremely serious” and “obvious violation of the right to be heard”, according to the judgement, which was published on Tuesday.

The court emphasised that medical data is particularly protected. The Schwyz authorities had not justified the serious interference with a concrete danger, but merely with the risk that evidence could be destroyed. That was not enough.

According to the Federal Supreme Court, the nullity did not jeopardise legal certainty. According to the highest court, the doctors were entitled to assume that they had acted lawfully.

The case will be referred back to the Administrative Court of the Canton of Schwyz for a new ruling.

Translated from German by DeepL/jdp

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