Medical secret in interwar Romania

Sorin Hostiuc, Octavian Buda

Acknowledgment: This work was supported by a grant of the Romanian National Authority for Scientific Research, , CNCS – UEFISCDI, project number PN-II-RU-TE-2012-3-44.

Professional secret before interwar Romania

First legal norms – Vasile Lupu’s Laue (1643): The confessor, if he is to tell the sins of the ones who shrive, he is to have as tennet not being a priest for three years….

Administrative Manual (Moldavia, 1834), regarding the midwifery institution: “It is not forgiven to the midwife to speak in public about the secrets of the childbed, either being them married or not”

Professional secret before interwar Romania

Criminal Code (Condica Criminalicească), Barbu Știrbei, 1850

first general law stating the mandatory character of the professional secret

Source: The French Criminal Code (Napoleon, 1812)

Criminal Code (Cuza, 1865, Art 305): “Doctors, surgeons, apothecaries, midwives and any other person who, by nature of their profession, obtain knowledge and become keepers of secrets they are entrusted with, will reveal them, except when the law requires such a confession will be punished by imprisonment from one month to six months and a fine from 100 to 500 lei”

Source: The French Criminal Code

Valid until 1937

Characteristics of the professional secret

Evolution in two main stages:

An absolute medical secret, whose roots are identifiable in the second half of the XIXth century

The relativisation of the concept

The medical secret is absolute - theory

Sources: mainly French medical deontology and penal law:

The Watelet case

The medical secret refers to all medical data of the patient, found out during the physician-patient relationship

Breaching the medical secret – fellony, irrespective of the possibility to provea guilty intent ”le délit existe des que la révélation a été faite avec connaissance, indépendamment de toute intention de nuire”

Brouardel (Le secret medical) – a promoter of the absolute character of the medical secret;

The promoters of medical deontology in Romania (M.Minovici, G.Bogdan) – pupils of Brouardel

The first Romanian deontology books – highly influenced by those written by Brouardel

The medical secret is absolute - practice

Jurisprudence “we had, and still have physicians, lawyers, and priests who forget their duty, one of the

most important of their job [n.n the professional secret]” and if they were not prosecuted, this is caused by ignorance, indifference and disinterestedness of the aggrieved party and inaction on the other parties for which there is only one excuse - they have considered it a crime of a private nature , and waited a complaint from the injured party, which has not arrived”(Mladoveanu). Why?

The article regarding professional secret - included in the chapter about defamations-> in order to be a libel, the breach of secrecy must cause slander or damage the reputation of the one whose secret was disclosed ->difficult to prove

In order to be a felony – should be present all elements of the crime, including intentional disclosure (otherwise it would not have been defamatory)

No methodological norms

What is a defamatory disclosure?

What kind of prejudice does it have to be present in order to consider the revelation a crime?

The medical secret is relative- practiceMedicine “The issues for which you would address me (n.n. medical

secret), are too complex, they depend too much on the personality of the doctor, the circumstances in which we seek to get out of our silence, which binds us our sense of duty, so that they can be subject to a general formula. I do not believe in the absolutism of medical confidentiality, when everything around us reveals the relativity of our actions, but on the other hand recognize that family honor, the most intimate interests of our clients should not be compromised by disclosure made with compromising ease, except when it comes to the higher interests of the good of society and mankind. In conclusion, these lines may remain obscure, but I had no intention to fix those problems whose solution may vary from one case to another, from one doctor to another, and where the doctor should listen to his conscience first ).(Letter from Ghe.Marinescu to E.Uscatu)

Everyday physicians considered the medical secret as less important compared to the good of society and mankind.

The medical secret is relative - practice

Judicial

Pastion and Papadopol (Judges, at Ilfov Court, 1922): the law requires the revelation if requested by the judiciary system (required by law becomes equal to required by justice), and this is a very good thing as under the protection of secrecy may hide some who can be called upon in justice and help in finding out the truth…social interest must take precedent in relation to personal interest

The judicial system started to consider that hiding information from the judicial system under the umbrella of medical secret – abuse (obstruction of justice)

The medical secret is relative - theory

MedicineThe relativisation of the concept was determined by:Current medical practiceNew theories regarding the medical secret in Western Europe (Baltazard - Precis de Medecine Legale,

1921)The most visual proponent of the relative medical secret, N.Minovici – became President of the

Romanian College Board in 1937.

A girl, who worked at a pearl factory, died poisoned by tetracholorethane. The father asked for punitive

damages, that were finally obtained, aided by a deposition of a physician. The manufacturer challenged

the ruling at Court of Cassation with the pretext that the physician breached the professional secret. “If

such a process”, said N.Minovici “had occurred a hundred and something years ago the manufacturer of

fake pearls would had won, but now he was sentenced to pay punitive damages, since the Court of

Cassation, taking account the fact that the revelation of information by the physician did not hurt the

deceased’s memory, increased the relativity of professional secrecy, so that the absolute silence,

„toujours et quand même" of Brouardel, turned in an alarm cry when public order is concerned”

Consequences of the relativization

1. A revision of the article regarding professional secret in the Criminal Code of Carol II (1937). Significant diff:

Who must obey the professional secret. If the old one specifically stated the professionals, the new one used a general statement: “The one who”.

what are the ones who must obey the professional secret. If in the old Criminal Code were solely included information obtained during the practice of the profession, the new Code extends them to information obtained in virtue of the job and function

revelation of a secret does not have criminal consequences unless it can lead to moral or material injury to a person or family. Therefore beneficial revelation can theoretically be considered as not a criminal offence

Consequences of the relativization

2. Code of the Romanian College Board: “The physician who reveals the professional secret... and by that leads to prejudice to the honor of the medical body and the prestige of the profession... can be judged by the Disciplinary Commission of the Local College Board”

Even if revealing the secret may, in specific circumstances, not be considered as a criminal offense, it does have consequences, as the physician can still be charge with breaches of the deontology code.

This happens however, only when revealing the secret leads to prejudice to the honor of the professional body or the prestige of the profession

Conclusions

Evolution of the professional secret in interwar Romania is, in general, similar to, and highly influenced by the one found in other countries from Western Europe

The main difference – a high resistance of the physicians to the absolutist view regarding the medical secret