The doctor’s duty of confidentiality should not be interpreted in such a way as to prevent the use of the preliminary information of the doctor’s opinion in cases of domestic violence, the KKO outlined.
For a medical certificate recorded prerogatives of injury may be used as evidence in a domestic violence case, even if the victim does not wish to testify against his or her spouse.
This is the conclusion reached by the Supreme Court (KKO) in its preliminary ruling.
According to the KKO, the doctor’s duty of professional secrecy enshrined in law should not be interpreted in domestic violence cases in such a way that the preliminary information of the doctor’s statement is a secret within the meaning of the law which the doctor should not prove. There is therefore no obstacle to the use of a medical certificate in court proceedings.
In the case, a 25-year-old man was accused of violence against his cohabiting spouse. The man admitted the mildest of the deeds, but denied more serious violence, such as blocking his breath, putting his fingers in his throat, and waving his head against the wall.
Victim initially told the police and the doctor about the incidents, but later she wanted to exercise her statutory right not to testify against her common-law partner. In the KKO, it was a question of whether other evidence presented by the prosecutor circumvented this protection of close discrimination.
The KKO concluded that the story of two witnesses could not be used as evidence in all respects in the story.
Witnesses had heard what the victim had told police during a preliminary interview. This section may not be used as a display. Instead, witnesses can be heard from their own observations.
Medical certificate the use of foreground as evidence was approved by the Supreme Court. According to the KKO, this does not circumvent the protection of close discrimination guaranteed by law.
Usually, a doctor has a ban on testifying about his or her patient’s affairs. It only gives way to crimes that can lead to more than six years in prison. Now it was not such a crime, as the maximum penalty for assault is two years in prison.
However, the KKO pointed out that in an assault case, the victim’s medical certificate is only exceptionally secret under the law.
Here In this case, the victim’s medical certificate does not contain sensitive medical information that would not allow the doctor to testify. The testimony also did not contain the secrets of the victim or family.
As such, health-related information is at the core of privacy.
However, the overriding societal need to combat violence may make it acceptable to limit the privacy provision of the Constitution, the Supreme Court stressed.
“Even the slightest violence has not been considered acceptable and is not a private matter of the parties,” the KKO stated and referred to the report of the Parliamentary Law Committee.
For this reason, the doctor’s duty of confidentiality should not be interpreted as precluding the use of background information from a doctor’s report in cases of domestic violence.
The KKO decided to refer the matter back to the Court of Appeal for reconsideration.
In the past, a man was punished only for the acts he confessed. It is now for the Court of Appeal to assess whether the sentencing threshold is also exceeded for other acts when the medical certificate may be used as evidence.