3
such compliance. In both cases the State would be harming the right to life and
health of the individual, both directly and by intimidation or restrictions imposed on
those who, due to their profession, are regularly obliged to intervene in the
protection of those rights.
8.
In my opinion, the State cannot violate the protection of health and life for
which doctors are responsible, by norms or interpretations of norms that dissuade a
doctor from complying with his duty, either because they threaten him with the
application of a penalty (a threat that can prevent him from providing medical
services), or because they induce him to make distinctions contrary to the principles
of equality and non-discrimination, or because they oblige him to deviate from his
proper functions and assume others that enter into conflict with the former, pose
unacceptable dilemmas, or change the basis of the relationship between doctor and
patient, as would happen if doctors were obliged to inform on the patients they treat.
A similar situation would arise, if lawyers were forced to report the unlawful acts
committed by their clients (which they learn about through their relationship of
assistance and defense), or priests to reveal the secrets of the confessional.
9.
This does not mean trying to prevent the legitimate prosecution of unlawful
conducts, which must be combated with appropriate means, but rather maintaining
each social relationship in its corresponding niche, not only for the benefit of the
individual, but also for the benefit of society. Given their functions, the prosecutor
and the investigator must ask the necessary questions. The doctor, the defense
lawyer and the priest must do the same, fully protected by the State, in the exercise
of their mission, and this is evidently not the investigation of offences and the
prosecution of perpetrators. It is not necessary to describe the crisis that would
occur if the professional and social roles were disrupted and doctors, defense lawyers
and priests were tacitly incorporated into the ranks of the police. If confidential
communications between the lawyer and the accused are protected from
interference, and it is accepted that the priest is not obliged to violate the secret of
the confessional (an essential characteristic of this specific communication, which
believers consider a sacrament), the relationship between doctor and patient should
receive, at least, the same consideration.
10.
The concept that a doctor is obliged to attend all individuals equally without
entering into considerations on their moral or legal status, and that healthcare is an
obligation for the doctor and also a right, and acceptance of the confidential nature
of the doctor-patient relationship as regards what the patient reveals, has long been
recognized and has been firmly established in several of this profession’s best-known
ethical-juridical instruments, which include, inter alia, the particularities of the
doctor-patient relationship and the characteristics of the loyalty that the doctor owes
to his patient. Aesculapius wrote to his son: “Your door shall remain open to all […]
The evildoer shall have the same right to your help as the honorable man.” The
Hippocratic oath, which is still sworn by many young people when they receive their
professional diploma in medicine, states: “What I may see or hear in the course of
the treatment or even outside [...], which on no account must be spread abroad, I
will keep to myself, holding such things secret.”
11.
The judgment, which this opinion accompanies, mentions the conclusive text
of several principles of international humanitarian law. The reference to these texts is
given merely for information because, as the Court’s case law has indicated, it helps
illustrate the interpretation given to the provisions that are directly applicable. Thus,
Article 18 of the First Geneva Convention of 1949 indicates that, “No one may ever