Minors, but also young women over the age of 18, often have to hide abortions from their parents. The reasons for this are usually easy to understand. Coercion or even violence threatens not only young women with a migration background. Young women still living with their parents come under pressure in this difficult situation, which can directly endanger their whole future and/or their health.
Who decides on patient confidentiality?
In such situations it is essential for the young women concerned that they can rely on the fact that the secrets entrusted to them in the doctor-patient relationship are kept. Patient confidentiality is an important legal asset that is necessary to protect health and basic self-determination and is an essential basis of the relationship of trust between doctor and patient. Each patient decides for herself who learns about the abortion. It is easier to keep this secret in a medical office with a limited number of employees than in a large institution, such as a hospital with many employees.
Is information passed on to parents? Can I trust the doctor?
Doctors as well as health insurance companies or their employees are subject to an extensive legal obligation of confidentiality, the violation of which may have serious consequences. Art. 321 of the Swiss Penal Code (StGB) regulates professional confidentiality and protects all data and information that a medical professional learns during the treatment of a patient by threatening violations with imprisonment or a fine. Employees of health insurance companies are also subject to the obligation of professional confidentiality, which is regulated in Art. 33 of the General Part of the Social Insurance Law (ATSG).
Does the obligation of confidentiality also apply to minors?
Yes, minors are also fully protected. Each patient is the owner of her own data and is responsible for who can access it. Even in the case of minors, the patient can claim full protection under the above-mentioned legal provisions. The patient concerned is directly protected by the relevant legal provisions and these rights cannot be withdrawn against her will, not even under a contractual agreement.
What is the situation when the parents pay the health insurance?
The obligation of confidentiality applies comprehensively, so it does not matter if, for example, the health insurance premiums were not paid by the minor patient herself, but by her parents. Even in the context of reimbursement, the above-mentioned confidentiality obligations must be fully respected by the health insurance company. An exception is made if the patient has given her express consent. For example, the health insurance company may only provide the parents with information about a treatment if the patient has given her oral or written consent. It should also be noted that the very fact that a treatment relationship exists between the doctor and the patient is part of the duty of confidentiality. If the duty of confidentiality is interpreted very narrowly, the doctor is not allowed to tell parents whether the patient has ever been treated by her or not.
Reimbursement by the health insurance company
Where does it say in the law that there is a reimbursement obligation?
The legal basis for reimbursement can be found in the Federal Health Insurance Act (KVG/LAMal) and the Federal Act on the General Part of Social Insurance Law (ATSG).
The Health Insurance Act provides special protection for the treatment of minors. Premiums must be lower for children and young adults than for adults (Art. 61 para. 3 KVG/LAMal). The general insurance obligation (Art. 3 Para. 1 KVG/LAMal) also aims to guarantee treatment in all cases.
Although the health insurance contract for young women is often concluded with the parents, the obligation to reimburse for defined medical services not only secures material rights for the parents, but primarily the necessary treatment. The purpose of a health insurance contract is not only to insure a material good, but also to ensure the health of the insured in a way that goes beyond this.
How can the reimbursement guarantee of the parents be transferred to the minors?
In the event that the insurance contract for the insured minor patient has been concluded between her parents and the health insurance company, the obligation of reimbursement of paid services is generally between the health insurance company and the parents. However, due to the above-mentioned obligation of confidentiality, the insured minor patient has the right to confidentiality of the medical treatment provided, also towards her parents. The health insurance company must take this into account when processing the reimbursement.
How can a minor proceed with an abortion?
In the specific case of an abortion, where the minor patient pays for the treatment herself, this might only be possible in practice if the health insurance company reimburses directly to the paying minor patient and the invoice for the services provided under the health insurance is sent to an address indicated by the patient.
Applicable legal provisions
Article 321 of the Criminal Code – Violation of professional confidentiality
1. Clergymen, lawyers, defense counsel, notaries public, patent attorneys, auditors who are bound to secrecy under the Swiss Code of Obligations, doctors, dentists, chiropractors, pharmacists, midwives, psychologists, nursing staff, physiotherapists, occupational therapists, nutritionists, optometrists, osteopaths and their assistants who disclose a secret which has been entrusted to them as a result of their profession or which they have observed in the exercise of that profession shall, on request, be punished by imprisonment for up to three years or punished by a fine.
Similarly, students who reveal a secret which they perceive during their studies will be punished.
Violation of professional secrecy is also punishable after completion of professional practice or studies.
2. the perpetrator is not liable to prosecution if he has disclosed the secret to the superior authority or supervisory authority on the basis of the consent of the entitled person or a written authorization issued at the request of the perpetrator.
3. The federal and cantonal provisions on reporting and participation rights, on the obligation to give evidence and on the obligation to provide information to an authority remain reserved.
Art. 33 ATSG – Confidentiality
Persons who are involved in the implementation, control or supervision of the implementation of social security legislation must maintain secrecy towards third parties.
Art. 19 ZGB – A. Personality in general / III. Incapacity to act / 3. persons incapable of acting with judgement /
3. persons who are incapable of acting in a judicial capacity
1 Persons who are incapable of acting in a judgmental capacity may only enter into obligations or give up rights with the consent of their legal representative.
2 Without this consent, they may obtain advantages that are free of charge, as well as minor matters of daily life.
3 They shall be liable for damages in tort.
Art. 19c ZGB – A. Persönlichkeit im Allgemeinen / III. Handlungsunfähigkeit / 4. Höchstpersönliche Rechte
4. maximum personal Rights
1 Persons who are incapable of acting and who have the capacity to judge exercise the rights to which they are entitled for the sake of their personality independently; this is reserved for cases in which the law requires the consent of the legal representative.
2 The legal representative acts on behalf of persons who are incapable of acting in judgement, unless a right is so closely connected with the personality that any representation is excluded.