Recent convictions of women accused of procuring abortions have sparked debate over the extent of medical practitioners’ obligations to report information shared by patients.
The general rule is that medical practitioners cannot disclose what is said to them by their patients as this would breach client confidentiality laws. It is only where the law expressly provides for disclosure that such disclosure can exceptionally take place. A legal analysis as to the precise legal circumstances in which doctors in Malta are either permitted or required to disclose confidential information obtained in the course of their professional duties will therefore be provided in this article.
Medical doctors in Malta are regulated professionals subject to the Professional Secrecy Act. Information shared by patients in the context of medical consultations and treatment is classified as a professional secret. This protection is reinforced by Article 257 of the Criminal Code, which makes it an offence for a person to disclose such a secret without lawful justification. Professional secrecy is is such a serious matter which needs to be safeguarded that the sanctions imposed at law are very strict. In fact, a penalty for unauthorised disclosure can include a fine of up to €46,587.47 or/and imprisonment for up to two years. The criminal code provides that it shall be a defence for a professional who has disclosed a professional secret, to plead that such disclosure was made to a public authority investigating crimes such of drug trafficking and money laundering.
The Professional Secrecy Act further provides limited exceptions where disclosure does not constitute an offence. These are disclosures made in good faith to the body regulating the profession for advice or directions, to a public authority or court when proportionate and necessary for defending against professional claims or to a competent public authority when reasonably believed necessary to prevent, detect, reveal, or prosecute a criminal offence, or to avoid a miscarriage of justice.
Additionally, the Professional Secrecy Act imposes an obligation to disclose in certain specific situations, these being; when required by a competent law enforcement or regulatory authority investigating a criminal offence, when required by an inquiring magistrate or when required by a court of criminal jurisdiction during a prosecution.
Importantly, Article 8 of the Professional Secrecy Act clarifies that a person is not “compelled by law” to disclose information to a public authority unless there exists a specific statutory requirement to that effect. Therefore, medical practitioners must only report when explicitly obliged to do so by legislation. Failure to respect confidentiality outside these narrow exceptions risks prosecution under the criminal code and the Professional Secrecy Act.
There are specific scenarios where the Law establishes clear instances of mandatory reporting for medical practitioners:
Child protection cases
Under Chapter 602 of the Laws of Malta, doctors who have knowledge of an act causing or likely to cause significant harm to a minor, or who know that a minor has been the victim of a criminal offence or is in need of care and protection, are required to immediately report to the Director (Child Protection) or the Executive Police. The Law clarifies that reports made in good faith are protected and cannot give rise to criminal or civil liability. Moreover, failure to report when required constitutes an offence, punishable by imprisonment of 3 to 9 months, a fine of up to €5,000, or both.
Suspected adverse reactions to medicinal products
Under subsidiary legislation 458.35, doctors and other healthcare professionals have a duty to immediately report any suspected adverse reaction to a medicinal product to the relevant Authority.
Notifiable diseases
Under Article 27 of the Public Health Act, certain diseases must be notified, creating a statutory obligation for medical practitioners to report such cases.
Conclusion
When it comes to medical practitioners in all other situations, the default position remains strict confidentiality of information provided by a patient. Medical doctors are not generally required or permitted to disclose patient information simply because a criminal offence may have occurred, unless one of the specific statutory exceptions or mandatory reporting provisions outlined in this article applies. The law is clear in this respect, however guidelines for medical practitioners with regards to their obligations under the professional secrecy act could help reduce any legal doubts.
