Author: Lawyer Enrico Germano

Prior to the aforementioned ruling by the Federal Supreme Court 1 , Article 68 of the Ticino Law on Health Promotion and Coordination of 18 April 1989 (Health Law of the Canton of Ticino – LSan) stipulated that every health professional was obliged to inform the Department and the cantonal doctor of any fact that could endanger public health. Anyone exercising a health profession in an independent or employed capacity was obliged to inform the Public Prosecutor of any case of illness, injury or death from a cause certain or suspected to have occurred in the exercise of the profession. The Public Prosecutor notified the Department, as soon as possible but no later than three months after the opening of the investigation, of the existence of criminal proceedings against health professionals, with the exception of cases with no relevance to the exercise of health activity 2 . Art. 95 of the Health Law also provided that any infringement of the provisions of the cantonal law and its implementing regulations was punishable by a fine of up to CHF 100,000.– 3 .

On 11 December 2017, the Grand Council of the Canton of Ticino had adopted the amendment to the Ticino Act, stipulating, among other things, that every healthcare worker was obliged to inform the Public Ministry promptly within a maximum of 30 days, either directly or through the cantonal doctor, of every case of illness, injury or death for a certain cause or suspected crime that had come to their attention in connection with the exercise of their function or profession 4 .

A health professional is any person who carries out his or her professional activity within the health sector, whether public or private, and includes but is not limited to the doctor, the nurse, the technician and also the administrative employee working within the health structure.

Against the amendments to the Health Law, several doctors had filed a public law appeal on 13 August 2018 with the Federal Supreme Court, requesting that Article 68, paragraph 2 of the Health Law be annulled and that it be reformed in such a way as to limit the duty of the health care provider to reporting cases of death due to a certain cause or suspicion of a crime. They also postulated the repeal of the addition of the punishability of the omission provided for in Article 95, paragraph 3 of the Health Law 5 . The Federal Supreme Court then partially upheld their appeal. The appellants had claimed on the one hand that their privacy had been infringed, referring in this respect to Article 253(4) of the Swiss Criminal Procedure Code (Criminal Procedure Code – CrimPC), which provides for an obligation to report only deaths due to suspicious or unknown causes.

On the other hand, the plaintiffs argued that ‘the obligation to provide information to the authority set out in the proviso to Article 321(3) CrimPC, could not be used and interpreted as an unlimited power in favour of cantonal law to require persons bound by professional secrecy to provide information to the Public Ministry, which would empty the content of the guarantee6 .

Finally, the plaintiff doctors had also “reproached the Ticino legislature for having disregarded these principles by adopting the contested legislation, which they said was excessively broad7 .

With this ruling, the Federal Supreme Court once again made it clear that medical confidentiality is a fundamental legal institution. Medical confidentiality serves to give effect to the constitutional right to the protection of privacy and to protect the patient’s privacy 8 . Professional secrecy or medical confidentiality is also the basis of the relationship of trust that must be established between a doctor and his patient 9 .

1 Decision of the Federal Supreme Court2C_657/2018 dated 18.032021, 147 I 354

2 Health Law of the Canton of Ticino (LSan), Art. 68 para. 2 on the obligation to report by health professionals, later
amended – Official Gazette – BU 2018, 271 and 366; Official Gazette – BU 2021, 161

3 Health Law of the Canton of Ticino (LSan), Art. 68 para. 2 on the obligation to report by health professionals, later
amended – Official Gazette – BU 2018, 271 and 366; Official Gazette – BU 2021, 161

4 Extract from the Judgment of the Second Court of Public Law in the case of A. and B. v. Grand Council of the Canton
of Ticino (appeal under public law) 2C_657/2018 of 18 March 2021

5 Decision of the Federal Supreme Court 2C_657/2018 dated 18.032021, 147 I 354, lett. C

6 Decision of the Federal Supreme Court 2C_657/2018 dated 18.032021, 147 I 354, 5.1

7 Decision of the Federal Supreme Court 2C_657/2018 dated 18.032021, 147 I 354, 5.1

8 https://saez.swisshealthweb.ch/fr/article/doi/bms.2022.20443; Le Tribunal fédéral précise la jurisprudence sur le secret
medical, 18.01.2022

9 Federal Office of Public Health FOPH – https://www.bag.admin.ch/bag/it/home/medizin-und-
forschung/patientenrechte/rechte-arzt-spital/5-berufsgeheimnis.html