THE CORRELATION BETWEEN THE CONCEPTS OF “MEDICAL CONFIDENTIALITY” AND “MEDICAL SECRECY” IN THE CONTEXT OF THE ISSUES OF MISSING PERSONS UNDER SPECIAL CIRCUMSTANCES AND PRISONERS OF WAR

Abstract

As part of the prisoner-of-war exchange process, Ukraine compiles and submits lists in accordance with the categories of persons entitled to direct repatriation as defined by the Geneva Convention relative to the Treatment of Prisoners of War. These include: the incurably wounded and sick whose mental or physical fitness appears to have been gravely diminished; the wounded and sick who, in the opinion of medical personnel, are not likely to recover within one year, whose condition requires treatment, and whose mental or physical fitness appears to have been gravely diminished; and the wounded and sick who have recovered, but whose mental or physical fitness appears to have been gravely and permanently diminished. Therefore, next of kin and family members of missing persons or prisoners of war must obtain access to information and medical records from healthcare facilities as promptly as possible. However, resolving this issue entails several challenges, as an individual’s medical information contains personal data subject to special protection under current legislation. Information regarding health status is protected by medical privilege (doctor-patient confidentiality), and medical professionals have no legal right to disclose such information even to the closest relatives without a proper legal basis. Regarding the legal framework for the circulation of medical documentation (information) concerning persons missing under special circumstances, such records may be obtained within the framework of criminal proceedings initiated upon the fact of a person’s disappearance or capture. It is recommended that the information obtained be submitted to the Coordination Headquarters for the Treatment of Prisoners of War, as well as to the SSU United Center, the National Information Bureau, and the International Committee of the Red Cross (ICRC). This ensures the proper fulfillment of their humanitarian functions and allows the data to be taken into account during negotiations regarding the priority of prisoner-of-war exchanges or the release of civilian hostages. The issue of maintaining medical confidentiality in the context of the return of prisoners and persons missing under special circumstances represents a complex balance between protecting a servicemember’s privacy and the necessity of identification, health verification, and subsequent rehabilitation. Developing a theoretical framework and practical recommendations for accessing the medical data of prisoners and persons missing under special circumstances is an essential prerequisite for harmonizing national legislation with international standards of international humanitarian law and providing real, rather than declarative, support to the families and loved ones of servicemembers. Link to Geneva Convention. Link to Coordination Headquarters.