Psychological secrecy and the conditions for its repeal, consideration on the basis of criminal and civil proceedings – p. 1

Professional secrecy is a fundamental feature of public trust professions. Its main objective in the case of medical professions is to ensure compliance with patients' rights and in particular the right to free speech.

According to Article 14(1) Act on 8 June 2001 on the profession of psychologist and professional self-government psychologists 1 , the psychologist is obliged to keep confidential the customer-related information obtained in connection with the pursuit of the profession.

On the other hand, section 2 This provision provides that the obligation of secrecy may not be limited in time.

The obligations provided for in this Act to maintain certain information in confidentiality are the implementation of the standards resulting from the Constitution of the Republic of Poland from 2 April 1997 2 , in particular those contained under Article 30 (natural and inalienable human dignity), Article 31 (legal protection of human freedom), Article 47 (the right to the legal protection of private, family, honour and good name and to decide on your personal life) and Article 51 (the right to secrecy of information relating to his or her person)[3].

1. Legal and ethical standards governing the professional confidentiality of a psychologist

This publication is devoted to the consideration of the conditions for repealing the professional secrecy of a psychologist from the perspective of different branches of the law. The cases of a psychologist's release from this secret have been specified under Article 14(3)(1) Psychology Act, i.e. recipe section 1 does not apply when the health of the customer or of other persons is seriously at risk, or point 2 the above mentioned provision, i.e. That's what other laws are.

Professional secrecy is a legal and ethical category, i.e. its regulations are included in both the laws governing the pursuit of a particular profession and in the collections of deontological rules applicable in particular professions.

As has already been mentioned, a basic legal regulation shaping the scope of professional confidentiality of a psychologist is Article 14(1-3) The Psych Act. However, this is not the only provision that requires the confidentiality of customer-related information.

Another regulation which imposes such an obligation is Article 13 Act on 6 November 2008 on the rights of the patient and the Ombudsman 4 , which provides that the patient has the right to secrecy by medical professionals, including the provision of health services, information relating to him or her and obtained in connection with the pursuit of the medical profession.

Another legal standard related to secrecy is Article 50(1) Act on 19 August 1994 on mental health 5 , which provides that persons performing activities under this Act shall be bound by the obligation of secrecy of everything which they will be aware of in connection with the performance of those activities, in accordance with separate provisions, and in addition with the provisions of this Chapter.

The next source that regulates the psychologist's secret is a code of ethics. A correct interpretation of the law must not ignore the values and non-legal standards underlying these regulations and which, in the process of applying the law, shape their functioning[6].

Therefore, in the course of these deliberations, it is appropriate to mention the psychologist's code, which is precisely such a legal standard (it is not an act of law commonly in force). According to Article 11(2) point (a) of the Psychological Ethics Code, the scope of the Psychological Mystery is very broad, i.e.

the confidentiality of the information obtained by the psychologist in connection with his professional activities. As far as possible, professional secrecy is also covered by the mere fact of participating in activities.

Under Article 11(2) point (c) of the Psychological Ethics Code contains a directory of open information related to the client and protected by the professional confidentiality of the psychologist, i.e. The information covered by the psychologist's secret are, among others, messages concerning the recipient and other persons, but also products and test results, in particular raw results.

1. Conditions for repealing the professional confidentiality of a psychologist under criminal and civil proceedings

The basic provision specifying the possibility and conditions for the psychologist to disclose information covered by professional secrecy is Article 180(1)(1) Act on 6 June 1997 – Code of Criminal Procedure 7 , which provides that persons obliged to keep classified information classified ‘reserved’ or ‘confidential’ or ‘confidential’ or a secret relating to the pursuit of a profession or function may refuse to testify as to the circumstances to which that obligation extends, unless the court or prosecutor for the sake of the justice system exempts those persons from the obligation of secrecy, unless otherwise provided by specific laws.

Complaints shall be given. In the context of the above-mentioned provision, it should be stressed that the hearing “on the facts covered by secrecy” means that the state of secrecy is assessed first according to the wording of the relevant provisions of the laws which regulate the secrecy.

Exemption from the obligation of professional secrecy shall be based on the stage of proceedings under the order of the prosecutor or court.

In the preparatory procedure, this is the sole competence of the prosecutor, so that the psychologist may not be released from professional secrecy by the police or any other body entitled to conduct proceedings under separate rules.

However, in the case of jurisdictional proceedings, the decision to be released from secrecy may be decided both at the hearing and at the sitting.

In the absence of specific rules, it should be considered that, if a meeting on exemption from professional or functional secrecy is designated, the parties may participate if they become[8].

It is important that the act on the profession of psychologist among cases of dismissal of a psychologist from confidentiality does not explicitly mention a situation in which a secret can be abolished at the request of the client.

This means that a person to whom psychological assistance is provided cannot release a psychologist from his duty of secrecy. A psychologist cannot testify in court proceedings to a matter covered by professional secrecy without being released from secrecy by the competent authority even at the request of the client himself[9].

Although the above-mentioned thesis from the case law of the common courts refers to the confidentiality of a legal counsellor, due to the similarity between the laws and the nature of both professions, there are no obstacles to the recognition that the thesis contained in the rulings of the Supreme Court also concerns the professional secrecy of a psychologist.

It should also be remembered that the obligation to keep professional confidentiality of a psychologist is unlimited in time, which means that he binds a psychologist, even if he ceases to pursue his profession, is deprived of his right to perform it, and even after the death of the client.

Another regulation that limits the mystery of a psychologist is Article 240(1) Act on 6 June 1997 Criminal Code 10 , who establishes that who, having had credible news of the criminal preparation or attempt or performance of a prohibited particular under Article 118, Article 118a, Article 120-124, Article 127, Article 128, Article 130, Article 134, Article 140, Article 148, Article 156, Article 163, Article 166, Article 189, Article 197(3) or (4), Article 198, Article 200, Article 252 or a terrorist offence, shall not immediately inform the body designated for the prosecution of criminal offences, shall be subject to imprisonment for up to years 3.

A psychologist who has reliable information about any of the above offences has a legal obligation to notify law enforcement authorities and is exempted from the obligation of professional secrecy.

As A. Marek correctly pointed out: “The obligation of professional secrecy, as indicated in these regulations (i.e. Under Article 14(1) The act on the profession of psychologist) may in principle be repealed by other legislation. In particular, it is considered that professional secrecy is waived by specific under Article 240(1) k.k.

the obligation to notify of particularly serious crimes [...] further groups of employees, who, in the performance of their duties or duties, may, as it appears, suspect the offence, be those working as therapists, psychologists, journalists [...].

It should be considered that under Article 240(1) the obligation to notify of particularly dangerous offences shall be such that professional secrecy, including medical and journalistic secrecy, is lifted’ 11 .

In addition to the above restrictions resulting from the Supreme Court, criminal proceedings are also referred to Article 52(1) The Mental Health Act, which provides that persons bound to secrecy must not be interrogated, in accordance with the provisions of this Chapter, as witnesses to the statement made by the person to whom the action resulting from this Act has been taken, as to the criminal offence it has committed.

In literature, the prohibition of evidence resulting from the said provision is referred to as an absolute, incomplete prohibition of evidence[12]. The conduct of evidence covered by this prohibition is unacceptable. However, the effect of acting contrary to an absolute prohibition of evidence is that this action is ineffective.

The prohibition of evidence under discussion here concerns the hearing as a witness of all persons carrying out activities resulting from the Mental Health Act.

Consequently, a psychologist performing activities under the Mental Health Act will be obliged to keep a secret everything that will be reported in connection with the performance of these activities[13].

The legislator also rightly accepted that the person in psychiatric aid and the person who receives emergency medical assistance are in such a difficult emotional situation and are so vulnerable to influences and to the self-involved desire to admit to criminal acts that their situation, even if their statements explicitly state that the doctor should inform the competent authority, should not be used against him, as it is difficult in this case to speak precisely because of the patient's emotional state of fully conscious consent to the disclosure of such secrets, the silence of which is, after all, subject to the right of defence, of which the patient may be simply unaware when making statements to the doctor[14]. By the way, it should be noted that the obligation of secrecy applies to all subjects subject to testing and treatment in its mode, not only those who have been diagnosed with disorders.[15].

According to Article 261(1) Act on 17 November 1964 Code of Civil Procedure 16 , as a general rule, no one has the right to refuse testimony as a witness, except in a closed circle of persons defined by the legislature, i.e.

the spouses of the parties, their initial, descending and siblings and their kinsmen in the same line or degree, as well as those who remain with the parties in relation to adoption.

The psychologist is not included in the circle of persons entitled to refuse to testify, which means that he is obliged to summon a court to appear for the purpose of giving testimony as a witness. There are no instruments in civil proceedings to exempt a witness from the obligation to maintain a binding professional secrecy.

The provisions of the General Court do not provide for the possibility of exempting a witness from the obligation of professional secrecy, the scope of which is primarily governed by specific laws on the rules governing the exercise of public trust professions.

Consequently, neither the parties nor the judicial body may release the witness from secrecy.

A psychologist, acting as a witness, may therefore refuse to answer a specific question asked by a court or party if the testimony is to be combined with the disclosure of a material professional secret. However, the lack of the possibility for the court to exempt in civil proceedings from the obligation of professional secrecy does not exempt the court from the obligation to give appropriate instructions to the requested person as a witness.

Subject to Article 266(1) K.p.c., before questioning a witness, warns of the right to refuse testimony. The doctrine agrees that this provision concerns both the right to refuse testimony and the right to answer the question asked[17].

In the margins, it is worth mentioning the view expressed in the doctrine that, in some cases, the witness has not exercised the right of content Article 261(2) k.p.c.

and disclosure to the court of the circumstances covered by the secrecy of the medical profession may be considered to be an illegal activity, consisting in violating personal property[18].

3. Summary

On the basis of the analysis carried out, taking into account the extensive case law and literature in this area, it should be concluded that, under criminal proceedings, it is possible to exempt a psychologist from professional secrecy.

The exception to this principle is the prohibition of questioning a psychologist, performing activities under the Mental Health Act. Regulations under Article 52 The Mental Health Act aims to protect a person in a difficult emotional situation.

Even if their statements explicitly state that a doctor should inform the competent authority, it should not be used against him, for it is difficult to speak precisely because of the emotional state of the patient's fully aware consent to such secrets.

The issue of professional confidentiality of a psychologist under civil law is perceived differently.

The provisions of the General Court do not provide for the possibility of exempting a witness from the obligation of professional secrecy, the scope of which is primarily governed by specific laws on the rules governing the exercise of public trust professions.

Consequently, neither the parties nor the judicial body may release the witness from secrecy. A psychologist, acting as a witness, may therefore refuse to answer a specific question asked by a court or party if the testimony is to be combined with the disclosure of a material professional secret.

Problems related to professional psychology will be raised in part second The article will discuss, among other things, the obligation to denounce crimes.

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