Information Law Possum (discontinued)

Now that Germany has its big cycling doping scandal (see, e.g. here), we discussed at lunch whether the medical privilege does and should apply in doping investigations–assuming doctors and athletes can be prosecuted for doping, of course. (In Switzerland, doping is not a crime, though there has been a discussion in recent years about changing that.)

At least in Switzerland, doctors cannot invoke the medical privilege if they are being prosecuted themselves.  This rule, however, is based on the assumption that a patient is the victim and thus happy to waive his or her right to confidentiality.  Yet, doping is structurally different from that: like corruption, doping does not involve a direct victim, and it necessarily requires the clandestine collaboration of two actors–official and individual in the first case, doctor and athlete in the second.

The common legal doctrine on the medical privilege in Switzerland seems unfit to cope with this situation:  in an investigation against an athlete, his or her physician may (and in some cantons even has to) refuse to testify or to submit documents.  In an investigation against the doctor himself, most relevant documents–and arguably those that deliver a “smoking gun” to the prosecution–relate to the doctor’s “patient”, the athlete, and may therefore not be used either.  Arguing that the doctor did not learn the relevant facts (and create the documents) in connection with his profession won’t be convincing because the treatment of athletes, even if it involves performance-enhancing substances, can hardly be considered as non-medical.

Taken together, this would make prosecutions for doping virtually impossible. If one does not want to accept this, one could insert a clause into the anti-doping statute that lifts the medical privilege with respect to the relationship between the doctor and the athlete.  This would be a rather strong shift of the balance between the interest in effective criminal prosecution and privacy.  Is this shift justified given the fact that doping isn’t a very serious crime?

The medical privilege is based on the fundamental importance of the ability of individuals to seek medical treatment if they need it, without having to fear that they could end in prison because of what the doctor learns from the consultation.  In cases of doping, however, the doctor-patient relationship is (in most cases) an integral part of the criminal activity, like in the case of corruption, as I mentioned.  Where the relationship itself is a problem, the invocation of the duty of confidence in the dress of the medical privilege would amount to an abuse of rights. (Thought strongly inspired by the work f J.N. Druey, of course!) 

For the same reasons, a possible argument that the medical privilege is upheld even for the most serious crimes, and that the state is willing to take the risk of having to acquit a guilty person for lack of evidence because the privilege is upheld, isn’t very strong: One could say that just because the seriousness of the crime and the evidentiary problems are irrelevant, the fact that doping is less serious a crime should be irrelevant, too.  Plus, the state takes the evidentiary risks posed by the medical privilege for the benefit of the health of individuals.  It doesn’t have to take them if a given medical treatment is not intended to cure or alleviate a disease or an injury at all.

Therefore, I think lifting the medical privilege in doping cases is justified, even under the law as it stands.  In order to avoid costly litigation over this question, however, I would opt for a statutory exception to the privilege.