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II. RELEVANT ETHICAL CODES ISTANBUL PROTOCOL

3. Confidentiality D. Health professionals with
conflicting obligations

172. Ethical codes, from the Hippocratic Oath to
modern times, include the duty of confidentiality 173. Health professionals might have conflicting
as a fundamental principle. Confidentiality also responsibilities due to their circumstances of
features prominently in WMA declarations, such employment and/or have conflicting ethical obligations
as the Declaration of Lisbon, as well as the Nelson related to the setting of their encounter with the
Mandela Rules. In some jurisdictions, the obligation patient. In the case of health professionals employed
of confidentiality is seen as so important that it in State institutions, particularly those working with
is incorporated into national law. The duty of the police, military, other security services or in the
confidentiality is not absolute and may be ethically prison system, the interests of their employer and
breached in exceptional circumstances in which their non-medical colleagues may be in conflict with
failure to do so will foreseeably give rise to serious the best interests of the detainee/patient. Whatever
harm to the patient or others. Generally, however, the circumstances of their employment, all health
the duty of confidentiality covering identifiable professionals have a fundamental duty to act in the
personal health information can be overridden only best interests of the people who they examine and
with the informed authorization of the patient. 310 treat. They cannot be obliged by contractual or other
Non-identifiable information can be used for considerations to breach their core ethical obligations
other purposes and should be used preferably in or compromise their professional independence. They
all situations in which disclosure of the patient’s must make an unbiased assessment of the patient’s
identity is non-essential. This may be the case, for health interests and act accordingly. In addition,
example, in the collection of data about patterns health professionals may have conflicting ethical
of torture or ill-treatment, although special care obligations, in that they owe a primary duty to the
is required in securing such data. Dilemmas arise patient to promote that person’s best interests and
when health professionals are pressured or required a general duty to society to ensure that justice is
by law to disclose identifiable information that done and violations of human rights prevented. In
would be likely to put patients at risk of harm. such circumstances, the primary ethical obligation
In such cases, the fundamental ethical obligations of health professionals is to act in the best interests
are to respect the autonomy and privacy of the of their patients. In situations in which institutional
patient and avoid harm. This supersedes other pressure is brought to bear on a health professional,
considerations. Health professionals should make they should ensure that they have mechanisms to resist
clear to the court or the authority requesting such pressure, report it to their professional body
information that they are bound by professional and escalate their concerns about the health of their
duties of confidentiality despite potential legal patients if their recommendations are not followed. 312
liability. Health professionals responding in
this way are entitled to the support of their 1. Principles guiding health professionals
professional association and colleagues. In addition, with conflicting obligations
during periods of armed conflict, international
humanitarian law gives specific protection to doctor- 174. In all cases in which health professionals are acting for
patient confidentiality, requiring that doctors do another party, they have an obligation to ensure that
not denounce people who are sick or wounded. 311 this is understood by the patient. Health professionals
Health professionals cannot be compelled to disclose must identify themselves to patients and explain
information about their patients in such situations, the purpose of any examination or treatment. Even
particularly in situations of armed conflict. when health professionals are appointed and paid

310 Except for common public health requirements, such as the reporting by name of individuals, for example, with infectious diseases, drug addiction or mental disorders, and
acts of violence such as homicide, domestic violence, sexual assault and child and elder abuse.
311 Protocol I (art. 16) and Protocol II (art. 10) Additional to the Geneva Conventions of 1949.
312 Faculty of Forensic and Legal Medicine of the Royal College of Physicians, Quality Standards for Healthcare Professionals Working with Victims of Torture in Detention
(London, 2019, reviewed 2022).

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