Laws on Medicine
Lecture No.9 (Classroom 22, on Wednesday, November 26, 2008, at 15:00-16:40)
Chapter 9: Doctor’s Duty of Confidentiality and Exception１）What way should duty of confidentiality on a hereditary disease
and its legal doctrine be?
２）How should relation between doctor’s duty of confidentiality andpolice investigation be?
Faculty of Law, University of Tokyonhiguchi@j.u-tokyo.ac.jp Norio Higuchi and Yasuji Kodama

1Supplement to Last Class: Crime of Professional
Negligence Resulting in Injury and/or Death(Professional Negligence Resulting In Injury and/or Death, etc.)
Article 211: A person who has neglected necessary business-related care, thereby has someone
killed and/or injured shall be punished by imprisonment with hard labor or detention for not
more than 5 years, or a fine for not more than ¥1 million. The same shall apply to a person
who has someone killed and/or injured with a grave error.
1)Negligence in the professional negligence and a grave error
2)Error in civil affairs and one in criminal matter◆Exclusion of the application of Article 211 to the doctor, or a reduction: Is this justifiable?
★Nov. 20, 2008 (Morning ed., Asahi Shimbun dated Nov. 21): Case of dispensable chopsticks
judged “not guilty“ at the second instance too
Negligence found but no causal relation at the first trial; neither found at the second instance“No example of reports found as to a case where a pierced foreign substance reached thecranium interior”; a peculiar example, and no duty of a medical examination by interview
Proposal of General Principles by Ministry of Health, Labour and Welfare①To limit to grave errors (plus, cases of covering up and repeated mishaps)②Reporting to the police to be left to the discretion of a medical-care body (Investigation
Commission for Medical Safety)
Double special treatments
Cf. Story of a bus driver: Bus being a sole transportation means in an underpopulated region, andthe job responsible for safety and life, then, 2 dead and 3 seriously wounded in an accidental
fall
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Doctor’s Duty of Confidentiality—First
Example of Doubt about Law
Discussion over a patient with Huntington's diseaseNo.1 of the series on dialogues between the doctor andthe jurist
Article 134 of Criminal Law: “When the doctor,pharmacist, distributor of medical and pharmaceuticalproducts, midwife, attorney, counsel, notary, or those
who used to be in these occupations, without
sufficient reasons, disclose the privileged information,
they are to be sentenced to an imprisonment of up to6 months or a fine of ¥100,000 or less.”◎Doubt from the doctor about the legal doctrine3

Bioethics and Law: Case Studies (Yuhikaku, 2004)●First Case

A 45-year-old woman is diagnosed as having Huntington's
disease. But the patient says not to tell her family and relatives
about the fact. What the doctor should do? Huntington's disease
is a hereditary disease with an incidence rate of 50% in the family,
and is incurable at present.
Three Panelists
Doctor: Shoji Tsuji, Professor at University of Tokyo
Sociologist: Kaori Muto, supporting the family group ofHuntington's disease
Jurist: Norio Higuchi

4Image of Legal Consideration Viewed byDoctor
1 With little knowledge about job sites of medical care
2 Discussion being abstract and conceptional
Perfunctory and plain
Always the axis of confrontation between the two(rights/duties, right or wrong, legal or illegal, good or evil)
3 Criminal law to constitute the law to many of doctors
Something one doesn’t want to get involved if all possible
4 Only one merit: clear-cut law; it’s this in law.

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What are the problems in this case?
Hereditary disease
Not a problem of just a patient
Doctor is a being to support the patient’s family as a whole
The jurist’s discussion consists of nothing but the one on
dividing the family from the patient, though it might be for theargument’s sake.
As the result, the jurist is only interested in informing or not.
To the doctor, it’s (important but rather) a trivial issue.

6Weight of Prof. Tsuji’s Indication
Amid the rulemaking on medicine moving forward:
Is that really good to society?
Isn’t it necessary to reexamine legal considerations?
Absurdity of discussing criminal law in the foregoing
exampleDoesn’t the jurist need to change?

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Revealed Discontent with Legal
Discussion/Consideration
Legal discussion
Doctor’s duty of confidentiality stipulated in Article 134 ofCriminal Law→Recent instance of an arrest of a psychiatric examiner inNaraBut the provision includes the phrase, “without sufficientreasons.”
What are sufficient reasons?
Situation with sufficient reasons→Case with duty towarn
Two duties: duty of confidentiality or duty to warn?

8Doctor’s Duty of Confidentiality andCriminal JusticeIn the Matter of a Grand Jury Investigation of Onondaga County, 59 N.Y.2d130, 450 N.E.2d 678 (N.Y. 1983)
On June 16, 1982, a certain woman was found killed and wounded with aknife. Judging from the conditions of the scene, it was quite likely thatthe culprit was also wounded. There, the district prosecutor, by serving
Grand Jury subpoenas duces tecom on the hospital, requested to submit
records of treatments for patients wounded with a knife since June 15,
1982. The hospital countered with confidentiality privilege (privilege torefuse both testimony and documentary submissions) based upon duty ofconfidentiality regarding the physician-patient relation.
First trial court:
the prosecution’s victory
Appellate division : the hospital’s victory
State Supreme Court: the hospital’s victory with 5 to 091983 New York Supreme Court①It is important to have an interpretation in light of the intended purpose of the law that has
acknowledged the duty of confidentiality (privilege), and that is to encourage a patient toprovide complete information so that the patient can trust a doctor and receive proper medical
service, and a broad and liberal construction is necessary to implement its policy objectives.
②Information to be the subject of refusing testimony and documents presentation is the one
acquired from the patient by the doctor through the application of professional skills andknowledge, which is necessary to act as a medical professional; its exceptions are facts thatare plainly observable to a lay person without professional knowledge.
③Although the privilege belongs to the patient, the doctor or the hospital is allowed to claim forthe patient’s benefit. But this is not in the doctor’s discretion, and the privilege must beclaimed unless and until the patient waives it.
④Against an allegation to be in the public interest named a crime investigation, the precedents inthe state of New York are being quoted that supported the doctor’s confidentiality privilege
even in murder cases: First is the precedent in 1956 in which a driver, having an epileptic
seizure and being conscious of the possibility of its onset, came to suffer the seizure in driving
and killed 4, and what the driver confided in the doctor providing medical care was approved
to be the subject of the refusal to testify.: Another is the precedent in 1886 in which a doctor
who had examined a woman being accused of feticide was prohibited to testify what thedoctor had heard from the woman.
⑤In case of a murder instance, the federal legislation has a clear-cut regulation not to approve theconfidentiality privilege based on the physician-patient relation, while the state of New Yorkstatute has no such stipulation. Conversely, the exceptions to the confidentiality privilege areclearly enumerated, and this case does not apply to any.
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2002 New York Supreme Court
Case:
On May 25, 1998, a homicide occurred in Manhattan, and a witness testified
that the assailant was bleeding too. The investigating authorities though oflooking into records of treatments provided at emergency wards on May 25
and 26. Mindful of the precedent of 1983, the authorities served thesubpoenas duces tecum specifically excluding information acquired by aphysician or nurse in attending said patient. Among 23 hospitals servedwith these subpoenas, a medical corporation running 4 hospitals refused tosubmit records, and came to the lawsuit.
Result:Once again, the state Supreme Court decided in favor of the hospital-side’sallegation.
“Patients should not fear that merely by obtaining emergency medical carethey may lose the confidentiality of their medical records and their
physicians’ medical determinations… A contrary result (by the Court)
would discourage critical emergency care, intrude on patients’ confidential
medical relationships and undermine patients’ reasonable expectations ofprivacy.”
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Points of Interest
First, amid conspicuous actions promoting criminal investigations on terrorism
and such since 9/11 incidence in 2001, it is surprising that the state
Supreme Court handed down the decision to emphasize the duty ofconfidentiality of doctors and hospitals.
Second, what’s valued as the subject of the duty of confidentiality in New
York is information provided in confidence by a patient to a doctor related
to the state of a disease and treatment. Conversely, in the precedents,
photographs of all patients who match a certain description, or the names
and addresses of a certain doctor’s patients constitute exceptions to the dutyof confidentiality. Should such be applied in Japan, it might become aproblem for being accused of the disclosure of private information despite
having nothing to do with the content of medical care.
However, a question as to whether or not the New-York-type treatment isuniversally prevalent across the U.S., there is some reservation to make.
Relation between the physician’s duty of confidentiality and criminal
justice is up to each state’s statute law, and in some states, the applicationof said duty is limited to cases of civil affairs.
12HIPAA Privacy Rule and Criminal Justice○What is HIPAA Privacy Rule?
Circumstances where protected health information (PHI) can be disclosed: 12 patterns of activities
in the public interest

Clause of “Disclosures for Law Enforcement Purpose”; the hospital ispermitted to disclose PHI to law enforcement agencies under the following
circumstances:①To respond to a request for PHI, such as a court order or warrant of otherjudiciary proceeding②To respond to a request from a medical supervisory body
③To respond to a request from law enforcement agencies including the policeon the condition that the following are confirmed prior to disclosing
information; (a)that de-identified information cannot be used, (b)that theinformation requested is relevant and material for the law enforcement
purpose, (c) the scope of information requested is the minimum necessary
for their lawful purpose.
④When the disclosure/provision of information is required by law (e.g., casesof abuse, bodily harm by weapons capable to inflict a mortal wound)13

Provision of Information to Police⑤To respond to a request from the police and such for purposes of identifying or
locating a fugitive or suspect; but with a limited scope of personally-identifying
information as follows: (1)name and address (2)date and place of birth (3)social
security number (4)ABO blood type and rh factor (5)type of injury (6)date and timeof treatment(7)date and time of death (8)description of distinguishing physicalcharacteristics such as height, weight, gender, race, color of hair, presence orabsence of beard/mustache and scar.
⑥To respond to a request for PHI about a live victim of a crime (Provided the victim
agrees in principle; in case the agreement is difficult to obtain, the disclosure ispermitted only if it is confirmed that the information is needed to determine
whether another person broke the law, and that said information is not intended to
be used against the patient, and it is judged that doing so is in the best interest of thepatient.)⑦To alert law enforcement to the death of a crime victim (Limited to this case, thehospital is permitted to positively provide information of the victim prior to arequest from an investigation agency.)⑧When a crime is suspected to have been committed within the hospital (No requestfrom an investigation agency is necessary.)⑨When responding to an off-site medical emergency, as necessary to alert law
enforcement about the perpetrator or the victim
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Points of Interest
Firstly, most of items listed in the above is the enumeration of the cases that
permit medical institutions to provide protected health information ofpatients, and not of those pertaining to the duty of disclosing said
information. There are instances the duty of confidentiality is imposed on
medical institutions, and HIPAA merely guarantees that no legal liability is
charged against them even if they lift the ban and disclose protected
information.
Second, the disclosure of a quite limited scope of information is allowed evenas to a perpetrator, not to mention a victim, let alone a deceased victim ofcrime.
Furthermore, thirdly, this federal privacy rule on protected health information
specifies that any state statute that takes better care in supporting
information protection supersedes subject federal rule, thus, for example,
not reversing the sentence of New York in 2002.
All things considered, when the doctor or hospital is requested to provide
medical information by the police, said profession or institution is able torefuse the request on the ground of the duty of confidentiality, or there is aconsiderable number of cases where that needs to be refused.
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Personal Information Protection Law and
Police’s Perplexity○As to a corpse whose cause of death remains unknown, acoroner upon the examination found a hospital ID card nearby
the corpse, and made an inquiry about a medical record of thedecedent at the hospital. And which refused the request bysaying, “the information cannot be revealed without a consent
of the person in question or his/her family.”○“No disclosure without the subject person’s consent,” was theresponse regarding the degree of damage in a traffic accident
or an injury case. The same reply was given even when thepatient remained unconscious and could not respond.
○Amid an investigation of the alibi of persons involved, noanswer was provided to questions like, “Was this personhospitalized here during this period?”16

Q & A “Guideline for Appropriate Handling of Personal Information for
Medical and Nursing Care Operators” (Collection of Cases) by Ministry ofHealth, Labour and Welfare
Q5-24 As to a referral and an interview by the police or an investigation agency like prosecution, what are thecases that correspond to “exceptions to the restriction on the provision to the third party”?
A5-24 The referral by investigation agencies such as the police and prosecution based on Subsection 2 ofSec.197 of Code of Criminal Procedure (also the one based on Sec.507 of said code) is regarded to comeunder the “cases grounded on statute” stipulated in Para.1 of Subsection 1 of Sec.23 of Personal
Information Protection Law, constituting the exceptions to the restriction on the provision to the third
party; such referral, in addition to being considered to impose the obligation of reporting upon the otherside, an investigation on a voluntary basis, though cooperation in it is voluntary, is conducted byinvestigation agencies such as the police and prosecution on the specific legal bases.
Q5-25 When there is a referral or an interview by the police or an investigation agency like prosecution
regarding a situation of a patient, is it permitted to respond without the consent of said patient? Should wechange the way to handle referrals from the police and such in the wake of the enforcement of Personal
Information Protection Law ?
A5-25 Inasmuch as a referral and an interview by the police or an investigation agency like prosecution
correspond to the “cases grounded on statute” stipulated in Para.1 of Subsection 1 of Sec.23 of Personal
Information Protection Law, to respond without the patient’s consent dose not constitute the violation ofsaid law. Also, as for a referral in the occurrence of a disaster, because it is regarded to come under Para.4of Subsection 1 of Sec.23 of said law, no changes is considered necessary in the way to handle these, thus
allowing the response in a conventional manner.
Furthermore, it is hard to consider under a normal circumstance that the provision of a patient’s situationand other medical information requested by the above-mentioned referral and interview without saidpatient’s consent constitutes an unlawful act under civil law. An exception to this is a case of providing
information other than what is requested for, in which case a possibility of a claim for compensation cannot
be denied. So, when providing personal information to the police or an investigation agency like
prosecution in response to their referral or interview, it is considered necessary to confirm the position andname of an investigator who made a request for the disclosure of said information, and to be prepared to
explain on a later date about the provision conducted pursuant to such request.
17What Japan’s Course of Events inUproar IndicatesFirst, the problem lies in the very fact that, upon the enforcement of Personal
Information Protection Law, medical institutions hesitated to cooperate oninvestigations. In reality, it should be a question more than Personal
Information Protection Law.
Truth: effectiveness
Personal Information Protection Law > Sec.134 of Criminal Law
There is no stance to protect a patient’s secret as medical ethics.
Secondly, the subject medical institutions “overreacted” against is suchinformation as name and address. In the precedents of the New York state,
the names and addresses of a medical professional’s patients are outside theambit of his/her duty of confidentiality.
It is a posture to say, “It’s the law and there‘s nothing that can be done aboutit.” In reality, this is an “insensible” or absurd conditioned reflex to thesignification of the law.

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