Commentary on Article 321 of the Criminal Code of the Republic of Kazakhstan. Disclosure of Medical Confidentiality by a Healthcare Professional
1. Disclosure by a healthcare professional, without professional or official necessity, of information about a patient's illness or the results of a medical examination, expressed in the communication of information about a person's HIV status, —
shall be punishable by a fine of up to one hundred and sixty monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one hundred and sixty hours, or arrest for a period of up to forty days, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.
2. Disclosure by a healthcare professional, without professional or official necessity, of information about a patient's illness or the results of a medical examination, if such act has resulted in grave consequences, —
shall be punishable by a fine of up to four thousand monthly calculation indices, or corrective labour in the same amount, or community service for a period of up to one thousand hours, or restriction of liberty for a period of up to four years, or imprisonment for the same period, with or without deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.
The public danger of the criminal offence under consideration (Part 1 — a criminal misdemeanour; Part 2 — a crime) lies in the violation of the established procedure in the field of healthcare concerning the non-disclosure by healthcare professionals of information about a patient's illness or the results of a medical examination.
The object of this criminal offence is public relations aimed at ensuring compliance with the established rules and standards in the field of medical practice, as well as public relations guaranteeing the protection of citizens' rights to inviolability of private life. An additional object may be public relations guaranteeing the protection of citizens' life and health.
The subject matter under Part 1 of Article 321 of the Criminal Code consists of information concerning a patient's HIV status, while under Part 2 it consists of any other information about the patient's illness or the results of a medical examination.
The objective element of the act provided for in Part 1 of Article 321 of the Criminal Code consists of the disclosure by a healthcare professional, without professional or official necessity, of information about a patient's illness or the results of a medical examination, expressed in the communication of information about a person's HIV status.
Disclosure of information should be understood as actions or omissions by persons that result in third parties becoming acquainted with such information (i.e., when confidential information becomes known to at least one person).
The methods of disclosing information may vary, both oral and written (in the form of audio or video recordings, letters, telegrams, email messages, messages on social networks, messengers, etc.), and do not affect the legal qualification of the offence.
A healthcare professional shall not be held criminally liable if they disclose confidential information due to professional or official necessity.
Cases of professional and official necessity for providing information constituting medical confidentiality without the individual's consent are defined in Paragraph 4 of Article 273 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System”:
- for the purpose of examining and treating a person who, due to their condition, is unable to express their will, in the absence of a legal representative;
- in the event of a threat of the spread of diseases that pose a danger to others, including in connection with the donation of blood and its components, transplantation of organs (part of an organ) and (or) tissues (part of a tissue);
- at the request of bodies of inquiry and preliminary investigation, the prosecutor, an advocate and (or) a court in connection with the conduct of an investigation or judicial proceedings;
- when providing medical care to a minor or an incapacitated person for the purpose of informing their legal representative;
- where there are grounds to believe that harm to the health of a citizen of the Republic of Kazakhstan has been caused as a result of unlawful acts;
- upon the detection in a person of mental disorders and inclinations towards sexual violence;
- when conducting state control over the quality of medical services (care), and monitoring contractual obligations regarding the quality and volume of medical services;
- when inspections are conducted by prosecution authorities in accordance with the procedure established by the Law of the Republic of Kazakhstan “On the Prosecutor's Office”;
- at the request of special state bodies for the purpose of fulfilling the tasks of counterintelligence activities.
Based on the definition provided in Article 273 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System”, medical confidentiality comprises personal medical data, information about the fact of seeking medical assistance, a person's health condition, the diagnosis of their illness, and other information obtained during their examination and (or) treatment.
Information concerning personal medical data (information about an illness — diagnosis, course, prognosis, treatment methods used and their effectiveness, etc.) should be classified as information constituting medical confidentiality. Information about a patient's private life obtained in the course of performing medical duties (information about their past, habits, inclinations, intimate relationships, family, etc.) does not constitute the subject matter of the criminal offence under consideration. Actions by healthcare professionals involving the disclosure of information about a patient's private life and family should be qualified under Part 4 of Article 147 of the Criminal Code, “Violation of the Inviolability of Private Life and the Legislation of the Republic of Kazakhstan on Personal Data and Their Protection”.
According to Paragraph 5 of Article 273 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System”, the following shall not constitute disclosure of medical confidentiality: the transfer for storage of a backup copy of an electronic information resource to the unified platform for backup storage of electronic information resources in accordance with the procedure and time limits determined by the authorised body in the field of information security, except in cases where such electronic information resources contain information related to intelligence, counterintelligence activities and security measures aimed at ensuring the safety of protected persons and facilities, the transfer of which shall be carried out in accordance with the legislation of the Republic of Kazakhstan on state secrets; the exchange of information using information and communication technologies for the purposes of providing medical care and carrying out the activities of law enforcement and special state bodies.
The composition of the criminal misdemeanour provided for in Part 1 of Article 321 of the Criminal Code is formal in its structure; therefore, bringing a person to criminal liability does not require the occurrence of any socially dangerous consequences. The mere fact of disclosure by a healthcare professional, without professional or official necessity, of information about a person's HIV status to third parties is sufficient.
Unlike Part 1 of Article 321 of the Criminal Code, Part 2 of the provision under consideration establishes liability for the disclosure of information about a patient's illness or the results of a medical examination that has resulted in grave consequences. Thus, the composition of the crime provided for in Part 2 of Article 321 of the Criminal Code is classified as material in its structure.
From the list of grave consequences provided for in Subparagraph 4) of Article 3 of the Criminal Code, the following may be identified in relation to the criminal offence being analysed: the death of a person; the death of two or more persons; suicide by the victim or their close relative(s); the infliction of grievous bodily harm; the infliction of grievous bodily harm upon two or more persons; the infliction of large or especially large damage; and other consequences indicating the severity of the harm caused.
The subjective element of the criminal misdemeanour provided for in Part 1 of Article 321 of the Criminal Code is characterised by an intentional form of guilt, meaning that the healthcare professional is aware that they are violating the obligation to maintain confidentiality regarding a person's HIV status and wishes to disclose this information to third parties without professional or official necessity.
With regard to the criminal misdemeanour under examination, motive and purpose are optional elements of the subjective aspect and, accordingly, do not affect the legal qualification. Motives may vary and should be taken into account when determining the sentence.
The crime provided for in Part 2 of Article 321 of the Criminal Code is also characterised by an intentional form of guilt. However, in the act under consideration, the intentional form of guilt may relate only to the very fact of disclosing information about the patient's illness or the results of a medical examination. The mental attitude towards the consequences, however, must be expressed in the form of negligence. Where an intentional form of guilt is established, the actions of the healthcare professional should be qualified cumulatively as disclosure of medical confidentiality and the corresponding criminal offence provided for, for example, in Article 106 of the Criminal Code, “Intentional Infliction of Grievous Bodily Harm”.
The subject of the criminal offence is special and exclusively a healthcare professional, that is, a person who has professional medical education and is engaged specifically in medical practice.
According to Paragraph 2 of Article 273 of the Code of the Republic of Kazakhstan “On Public Health and the Healthcare System”, disclosure of information constituting medical confidentiality is prohibited for persons who have become aware of such information during training or in the performance of professional, official and other duties. Such persons should include employees of healthcare organisations who may have access to information about a patient's illness or the results of a medical examination in the performance of their professional or official duties; students of medical educational institutions undergoing practical training in healthcare organisations; caregivers, registrars, laboratory technicians, medical transport drivers; employees of the administration of healthcare organisations; employees of canteens located within healthcare organisations; and other employees of healthcare organisations who may have access to information about a patient in the performance of their official duties.
Exceptions include the cases provided for in Paragraphs 3 and 4 of Article 273 of the Code “On Public Health and the Healthcare System”. Thus, with the informed consent of the patient or their legal representative, the transfer of information constituting medical confidentiality is permitted for the purpose of conducting scientific research and using such information in the educational process (Paragraph 3 of Article 273). The grounds permitting disclosure of the specified information, provided for in Paragraph 4 of the Code, were considered above in the analysis of the objective element of this criminal offence.
The act provided for in Part 1 of Article 321 of the Criminal Code is classified as a criminal misdemeanour.
The act provided for in Part 2 of Article 321 of the Criminal Code is classified as a crime of medium gravity.
Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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