Psychological secrecy and the conditions for its repeal – consideration on the basis of criminal and civil proceedings – p. 2

Analysis of the grounds and mode of repealing the professional confidentiality of the psychologist, carried out in part first This publication 1 , leads to the conclusion that, in principle, a psychologist may be released from professional secrecy under criminal proceedings.

The exception to this rule is the prohibition of interrogating a psychologist who performs activities resulting from Article 52(1) Act on 19 August 1994 on mental health[2]. The regulations contained in this provision are intended to protect a person in a difficult emotional situation.

Even if such persons make explicit statements that the doctor should inform the competent authorities, such an attitude should not be used against him, as it is difficult to speak precisely because of the patient’s emotional condition of fully conscious consent to such secrets being revealed by a psychologist.

1. Introduction

The psychologist is obliged to keep confidential customer-related information obtained in connection with the pursuit of the profession. The Psychological Act only provides for two exceptions: if the health or life of the customer or other persons is at risk, or if the laws so provide.

In this context, there is therefore doubt whether there is a possible obligation for a psychologist to notify law enforcement authorities of a crime. Surely a psychologist can get information about a crime during his work.

The patient may admit to committing it, but this may also be due to a description of the patient's survival when he is the victim himself. 3 Or witness a forbidden act. Also, the circumstances of providing psychological assistance, such as signs of beating on the patient's body, may suggest that a crime has been committed.

The question of the possible obligation to inform the relevant authorities shall be governed by the relevant provisions.

2. Duty to denounce crimes and professional secrecy to a psychologist

There are regulations in Polish law which impose the obligation to inform the relevant authorities about certain events, of course this is about Article 73 Act on 20 May 1971 Code of offence 4 , who provides that who, contrary to his/her obligation, does not notify the relevant authority or person of a known danger to the life or health of a person or property of significant size shall be subject to imprisonment or fine.

Although that provision does not impose an obligation to notify the relevant authorities or persons in certain cases, it provides for a penalty for non-compliance with that obligation, which must, however, come from another source.

The basis for such an obligation may primarily be a provision of law, but also a contract, including employment, or the scope of duties. Not in all cases of such an obligation not to comply with it will be subject to sanctions under the Code of Offence.

This is because it is only about the danger that threatens the life or health of a person (in every case) and, in relation to property, only those of considerable size (which should not be identified with the value of that property).

There must therefore be a specific obligation to notify the danger arising from specific provisions in order to be able to speak of imposing sanctions for non-compliance.

In general, psychologists do not have that kind of obligation. The mere fact that in the event of a threat to the life or health of a client or other person, the psychologist is released from secrecy (Article 14(3) Act on 8 June 2001 on the profession of psychologist and professional self-government psychologists 5 ) does not mean that it has an obligation on that basis to notify the relevant authority or person[6].

Another example is Article 304(1) Act on 6 June 1997 Code of Criminal Procedure 7 , which establishes that everyone, having found out that he has committed a criminal offence of his own motion, has a public duty to notify the prosecutor or the police.

This provision therefore imposes a social obligation to inform the prosecutor or the police of this fact. Officiated offences are those offences on which the law does not make the applicant’s application subject or are not subject to private prosecution.

The general rule is to prosecute crimes ex officio, while exceptions – the application and the private complaint procedure.

To determine whether a criminal offence is being prosecuted on an ex officio basis or in any other manner, it is necessary to refer to part of the specific law of 6 June 1997 Criminal Code 8 Or any other law that contains a criminal rule.

If there is no law enforcement information in the wording of the provision, the offence shall be prosecuted ex officio. However, in certain situations it may also be necessary to review other provisions of the law in question, which may provide that a particular offence is not prosecuted on its own.

Thus, when the crime is prosecuted on an ex-post basis, the psychologist is also obliged to inform the prosecutor's authorities or the police of his or her involvement. However, this obligation is of a social rather than legal nature, and therefore, in principle, there are no criminal consequences for its non-compliance.

However, disciplinary liability cannot be excluded in certain cases. This will primarily apply to situations where the health of the customer or other persons is seriously at risk[9]. The prosecution or the police may be notified in writing or orally to the minutes.

Incompatible with section 2 the above-mentioned provision, the state and local authorities, which, in connection with their activities, have learned of the ex officio offence, are obliged to notify the prosecutor or the police without delay and to take the necessary steps until the body designated for the prosecution of the offences has arrived, or until that authority has issued an appropriate order to prevent the criminal record and evidence from being erased.

The legal obligation to notify the crime is imposed on state and self-government institutions, which, in connection with their activities, have learned of the criminal offence being prosecuted ex officio. They shall inform the prosecutor or the police without delay and shall take the necessary steps until the body designated for the prosecution of the offences has arrived or until such time as it has issued appropriate orders to prevent the criminal record and evidence from being erased.

The definition of a catalogue of entities that are considered as state and local government institutions remains to be contested. There is no agreement in the doctrine, among others, whether hospitals owned by local governments or individual ministries may be considered to be such an institution and whether this obligation therefore extends to psychologists employed in these institutions.[10].

Patients should be monitored closely. first indicate that the obligation to denunciation is imposed on the institution as such and not on its employee (which may be a psychologist). A person who is entitled to direct an institution is therefore obliged and a private employee is obliged only to notify his superior.

Furthermore, the penalty for failure to comply with this obligation shall specify Article 231(1) k.k., the share of which is limited to public officials only.

Who is a public officer determines first and foremost Article 115(13) k.k., in the context of a psychologist's profession, this may apply to a person who is an employee of government administration, other state body or local government, unless he is exclusively engaged in service activities and to another person in the field in which he is entitled to make administrative decisions.

The problem with determining which entities are state and local government institutions, in the context of the provision of health services, is primarily the issue of the ownership structure of the entity.

Medical activities according to Article 4(1)(1-7) Act on 15 April 2011 of therapeutic activity 11 may operate, among others, entrepreneurs, independent public health care establishments, budget units, research institutes and military units.

They can generally act as budgetary units, partnerships, capital companies, etc., and their owners can also be the Treasury and local government units. The legal status of the hospital can therefore be extremely complex, it can be run by the voivodship, for example, in the form of a public limited company.

Thus, while in certain situations a hospital or other establishment may be intuitively understood as a state institution (because it is created by a minister in the form of a budgetary unit), in other situations it may be doubtful, and in others – obviously not[12].

In spite of differences in doctrine, it should be accepted that the person providing medical assistance, or more specifically, the authority in charge of the unit in which such assistance is provided, will in no case be obliged to notify the law enforcement authorities on the basis of Article 304(2) The main reason for this interpretation is that adopting a different view would lead to the conclusion that the obligation to denunciation depends on the place of medical assistance[13].

It is therefore solely the public duty of the psychologist to inform law enforcement authorities of the fact that an ex officio criminal offence has been committed. The implementation of the obligation is assessed only in the moral sphere, not in the legal sphere.

3. Family violence and professional psychology

Another case is the obligation to notify a body of a life-threatening or health-threatening threat that may occur in the context of domestic violence.

According to Article 12(1) Act on 29 July 2005 on combating domestic violence 14 , who provides that persons who, in the performance of their duties or duties, have suspected of having committed an ex officio criminal offence with domestic violence shall immediately inform the police or the prosecutor thereof.

On the other hand, section 2 The above-mentioned provision lays down that those who witness domestic violence should inform the police, the prosecutor or any other anti-violence agent. The obligation to notify law enforcement authorities therefore applies only to the situation of domestic violence.

It is assumed to be a social obligation 15 (its implementation is assessed solely in the moral sphere) and not in the legal sphere. In practice, therefore, it is a repetition of the regulations from Kp.k.

In particular, the provision Article 12 The anti-violence law in the family does not in itself repeal rules on the obligation of secrecy, but it can happen under certain circumstances 16 provided for in separate provisions[17].

4. Contact with illegal substances

Psychologists may have contact with drug addicts as part of their professional work.

Act of 29 July 2005 on the fight against drug abuse 18 contains provisions requiring law enforcement authorities to notify drug-related offences, Article 56(1) Anti-drug Act, which states that who, contrary to regulations Article 33-35, Article 37, Article 40 and Article 40a, places narcotics, psychotropic substances, poppy straw or new psychoactive substances on the market or participates in such trade, is subject to fines and imprisonment from 6 months to years 8, Article 58(1) Anti-drug Act – who, contrary to the law, gives another person a narcotic drug, a psychotropic substance or a new psychoactive substance, facilitates or permits their use or induces the use of such a drug or substance, is subject to imprisonment for up to years 3 and Article 59(1) Anti-drug Act – who, in order to achieve a property or personal benefit, grants another person a narcotic drug, psychotropic substance or a new psychoactive substance, facilitates the use or induces the use of such a drug or substance, is subject to imprisonment from one year to a year 10.

On the other hand, Article 60 The Anti-Drug Act establishes a catalogue of entities required to inform the relevant authorities, i.e.

who, being owner or acting on his behalf as manager or manager of a catering establishment, entertainment establishment or other service activities, having credible knowledge of a specific offence under Article 56, 58 or 59 at the premises of that establishment or premises, it shall not immediately inform the law enforcement authorities, be subject to fines, imprisonment or imprisonment for up to years 2.

The list of entities obliged to notify this information is very limited.

Includes owners or managers acting on their behalf or managers of a catering establishment, entertainment establishment and persons engaged in other service activities who have credible news of the commission one of crime at the premises of that establishment or premises.

With regard to the activities of psychologists, it requires that their activities are of a service nature. There is no statutory definition of this concept under the Anti-Drug Act[19].

It is therefore possible to apply to the Regulation of the Council of Ministers from 27 December 2017 on Polish Classification of Products and Services[20].

The E-class includes psychiatric hospital services, mental health services provided by psychologists and psychiatrists and social services with accommodation, provided to persons with mental disorders.

It cannot therefore be excluded that such activities could be regarded as ‘other service activities’ within the meaning of the Anti-Drug Act[21].

The emphasis, however, requires that the literal wording of the provision implies that the offence must be committed at the premises of a catering establishment or entertainment establishment, but not at the premises where ‘other service activities’ are carried out. 22 .

This means that this obligation arises at the moment when a psychologist, who is at the same time a person conducting another service activity (i.e.

other than a catering and entertainment establishment) will take a credible message of a culinary establishment (restaurants, canteens, etc.) or a entertainment venue (club, pub, disco etc.) one of certain offences under Article 56, 58 and 59 The Anti-Drug Act.

In such a situation, the law enforcement authorities should be immediately notified, subject to criminal liability.

By the way, it should be pointed out that this provision does not impose an obligation on anyone to inform law enforcement authorities of the fact that someone is a drug addict or has such drugs on him. Undoubtedly, these are the situations that can be faced in the daily work of psychologists. On the other hand, Article 240 k.k.

is exceptional in that it imposes a legal obligation to notify the offence, in contrast to other regulations which, in principle, only provide for a social obligation. In addition, the obligation with Article 240 k.k. only applies exhaustively specific offences of which the species weight is significant[23].

Crimes under Article 60 The Anti-Drug Act, although undoubtedly socially harmful, is not so ‘serious’.

In conflict with the obligation to keep certain facts secret, which is the obligation arising from the Constitution, international agreements and other statutory provisions, in the absence of a clear exemption from the obligation of secrecy in this case, however, priority should be given to the obligation of professional secrecy[24].

5. Liability for breach of professional secrecy

Finally, it is worth considering the possible responsibility for the breach of professional secrecy by a psychologist. The disclosure of client secrecy may result in civil, criminal and disciplinary liability.

Civil liability is related to a violation of the personal property of a client or other person, as well as the right contained in the Constitution to the legal protection of the life conceived, family life, honor and good name, and to decide on your personal life.

The patient or his legal representative may then challenge the person who violated his secret, the action on the basis of Article 23(24) Act on 23 April 1964 Civil Code 25 (e.g. request of apology, delivery of a judgment in the press) and demand payment of an appropriate amount of money for compensation for the wrong suffered[26].

If the client has suffered material damage through disclosure of the secret 27 , responsibility for illegal acts is also possible[28].

Regardless of civil liability, criminal liability is also not excluded, primarily because of the fact that the person who was obliged to keep professional secrecy is the person who was responsible for it. According to Article 266(1) k.k.

a person who is required by law or contract to keep certain information secret and who discloses or uses that information shall be subject to fines, imprisonment or imprisonment for up to years. 2. This provision lays down criminal sanctions for disclosure or the use by a psychologist of information which he was obliged to keep secret.

The source of this obligation may be either a law or a contract. This offence may be committed only intentionally, either directly or possibly. ‘disclosure’ means a situation in which an unauthorised person learns the contents of information. Information must reach out to such a person and be familiar with it.

The disclosure may take the form of making the document, oral statements or the use of a mark or gesture available. On the other hand, ‘use’ is the use of information covered by a secret to benefit yourself or someone else or to benefit from knowledge of information. The use must be unlawful, i.e. infringe the provisions of the Act.

In relation to a person who is not a public officer, this crime is prosecuted on request. Therefore, only the victim may initiate the investigation. Following the submission of the application, the proceedings are already pending. The person under obligation of secrecy will be liable for criminal offence from Article 266(1) k.k.

only if she wanted to commit it or provided for the possibility of committing it and accepted it[29]. In addition, the person who is not entitled must actually be familiar with the content of the information covered by the secret – it is not sufficient to allow for such knowledge[30].

6. Summary

It should be concluded, in summary, that the provisions contained under Article 73 They do not constitute an essential condition for the psychologist to inform the relevant authorities or persons in the event of a threat to the life or health of the client or other persons, even if the fact alone relieves the psychologist from his professional secrecy.

Against the background of K.P.K., i.e. Article 304(1), each is obliged to inform the relevant authorities of the criminal offence being prosecuted on his own initiative. When a crime is prosecuted ex officio, the psychologist is also required to inform the prosecutor's authorities or the police of his or her involvement.

However, this obligation is of a social rather than legal nature, and therefore, in principle, there are no criminal consequences for its non-compliance.

However, disciplinary liability cannot be excluded in certain cases. This will primarily apply to situations where the health of the customer or other persons is seriously at risk. The situation is similar for Article 12 Family Violence Act. This is assumed to be a social obligation, not a legal obligation.

In practice, therefore, it is a repetition of the regulations from Kp.k. In this case Article 12 The law on the prevention of domestic violence does not in itself repeal the rules on the obligation of secrecy, but it should be borne in mind that certain facts 31 may waive professional secrecy.

The situation is different if the psychologist takes credible news of a culinary or entertainment establishment one From crimes of particular value. 56, 58 and 59 The Anti-Drug Act. In this case, the psychologist is obliged to immediately notify the law enforcement authorities, subject to criminal liability.

By the way, it should be pointed out that these rules do not impose an obligation on anyone to inform law enforcement authorities of the fact that someone is addicted to drugs or has such drugs on them. Finally, it is worth pointing out that disclosure of client secrecy may result in civil, criminal and disciplinary liability.

Civil liability is related to a violation of the personal property of a client or other person, as well as the right contained in the Constitution to the legal protection of the life conceived, family life, honor and good name, and to decide on your personal life.

On the other hand, an unlawful breach of professional secrecy by a psychologist according to Article 266(1) k.k. is at risk of imprisonment for up to years 2.

Regardless of civil and criminal liability, a psychologist who violates professional secrecy must also have disciplinary responsibility before members of the self-government psychologists, who can decide whether to remove psychologists from the list without the right to pursue the profession.

_____________________________________