Facts
Parties and facts of the case:
The complainant A. (born 1999) was in inpatient treatment at Clinic B from late February to early April 2022. During this treatment, his consumption of child pornography was also discussed. In May 2022, Clinic B requested the Office for Health and Social Affairs of the Canton of Schwyz to waive the professional confidentiality of the treating psychologists vis-à-vis the criminal prosecution authorities and the complainant’s own lawyers. This was justified by the risk of continued consumption of child pornography and a possible danger to others posed by A.
On 7 June 2022, the Office for Health and Social Affairs ordered the waiver of confidentiality for the lead psychologist Dr. C. vis-à-vis the criminal prosecution authorities of the Canton of Schwyz and a lawyer. A. was not heard, and the order was served exclusively on Clinic B. On 30 August 2022, the Office rescinded the order of 7 June 2022 and extended the waiver to further clinic staff as well as additional criminal prosecution authorities and lawyers. Again, A. was not heard, and the order was served solely on Clinic B.
On 7 October 2022, Clinic B filed a criminal complaint with the Public Prosecutor’s Office of the Canton of Schwyz against A. for consumption of hard-core pornography. A.’s legal representative only became aware of the waiver of confidentiality on 6 February 2023. A. lodged cantonal legal remedies against the waiver, which were dismissed by the Cantonal Government and the Administrative Court of the Canton of Schwyz. The latter with a decision dated 29 May 2024.
A. then filed a public law appeal with the Federal Supreme Court and requested the annulment of the cantonal decision and a finding of voidness of the order of 30 August 2022. The Federal Supreme Court allowed the appeal.
Considerations
Legal classification of the waiver order: The Federal Supreme Court confirmed that a waiver of professional confidentiality under Art. 321 para. 2 SCC requires a balancing of interests. The lower court had confirmed the waiver on the grounds that the public interest in criminal prosecution outweighed the complainant’s interest in confidentiality. However, the Federal Supreme Court held that a waiver may only be ordered at the request of the person entitled to confidentiality (here: A.) and must be served on that person personally. Service on Clinic B did not meet these requirements.
Procedural defects and voidness: The waiver order of 30 August 2022 suffered from three central defects: (1) A. was not involved in the proceedings, despite having party status as the person entitled to confidentiality; (2) the order was not served on A.; (3) the waiver was not granted at his request. The Federal Supreme Court qualified these defects as particularly serious and obvious, as they violated fundamental procedural guarantees such as the right to be heard (Art. 29 para. 2 Cst.) and the principle of good faith (Art. 5 para. 3 Cst.). The failure to serve the order on A. also meant that he had no opportunity to challenge the waiver before his professional secrets were disclosed.
Lack of legal basis for non-service: The Federal Supreme Court emphasised that non-service of an order on the addressee is only permissible if there is a clear statutory basis. In the present case, no such basis existed. The…