Facts
The Public Prosecutor's Office of Basel-Landschaft is conducting a criminal investigation against [X.] for serious bodily harm to the detriment of her daughter. In the course of the investigation, medical records and other documents were seized and sealed from the practice of the treating physician [Y.] . The Public Prosecutor's Office requested the unsealing and search of these documents in order to obtain further evidence for the criminal offense under investigation. However, the Compulsory Measures Court dismissed the request, as neither a release of the physician from professional secrecy nor a legal exception to medical confidentiality existed.
Considerations
The Federal Supreme Court upheld the decision of the Compulsory Measures Court. It stated that medical confidentiality under Art. 321 of the Swiss Criminal Code and Art. 171 of the Swiss Criminal Procedure Code is an important legal institution of federal law, which serves to protect the special relationship of trust between physician and patient. Exceptions to medical confidentiality require a clear federal statutory regulation, which was not the case here.
Although the Health Act of Basel-Stadt in § 27 para. 3 provides for a duty of physicians to provide information to criminal prosecution authorities in certain criminal offenses, this provision cannot be interpreted as a duty to…