The right to confidentiality in minors

The relationship between care and treatment of children and adolescents has changed enormously in recent years. We have seen how minors have gone from being understood as objects of protection and control to subjects of rights and bearers of a paramount interest.

Confidentiality is one of these rights and is at the same time a duty of health professionals called professional secrecy.

Confidentiality refers to the right of individuals receiving care to have their personal information, or information related to their care process, kept private. Professional secrecy is the professional's duty to protect the information received. Both are closely linked to respect for privacy as a fundamental right and tied to human dignity.

In every evolved society, the invasion of intimate space is considered a harm, it is felt as an undignified treatment for the victim of this harm, and we find the perpetrator undignified.

Confidentiality is based on three pillars that define an appropriate care relationship: respect for privacy, professional secrecy, and trust (both in professionals and in healthcare institutions).

Intimacy, privacy, confidentiality are concepts linked to the principle of personal autonomy since, by respecting intimacy, one respects the personality that sustains it and that differentiates it from others.

Confidentiality, like professional secrecy, has an ethical, deontological, and legal dimension.

Law 41/2010 on the rights and opportunities of children and adolescents recognizes the right to privacy of every person, regardless of age or level of competence, always requiring respect for the confidentiality of their data. While, as a general rule, the person receiving care is the holder of the right to information, the law also legitimizes sharing information with family members or people connected to them when the person lacks the full capacity to understand it.

In the case of minors, breaches of confidentiality will only be legitimate when the minor's competence is doubtful regarding the information related to the decision to be made, but never systematically for the simple fact of being under 18 years of age.

Confidentiality between the health professional and the adolescent will be configured as a duty to preserve the information when it is the minor who requests this trust from the health professional, a situation that does not necessarily always occur and that usually only occurs when the minor is faced with situations or decisions that affect their most intimate and personal sphere (sexual and reproductive health, consumption of toxins, etc.) that they want to preserve as their own, and certainly not in life-threatening interventions in which it will be the adolescent himself who requests the assistance and accompaniment of his parents.

Therefore, the conflict of how far to preserve the confidentiality of the minor will only arise in a specific area of action, and rarely in a general way.

An important question is how to reconcile the exercise of parental authority by parents or guardians with the child's right to confidentiality. Healthcare professionals are required to make an additional effort, as we are placed in an intermediate position, sometimes having to act as mediators between the child and their parents or guardians.

We cannot establish general rules of conduct with minors, but rather, starting from some basic premises, we must adapt the actions to be taken to each situation:

1. Children and adolescents have the right to receive information about their care at any age. This information must always be truthful (avoiding deception) and, at the same time, must be appropriate, consistent, gradual, and continuous.
2. The minor should always be informed in the most complete and appropriate way to their level of understanding , contrasting with them the different options and doubts they may have, and sharing the information with the parents or guardians depending on the level of maturity and the need to complement the information process carried out with the minor.
3. Between the ages of 12 and 16, respect as far as possible the confidentiality of the health information and data of the mature and sufficiently mature minor , especially in the face of an explicit request from them, weighing the risks and benefits of giving or communicating that information to the parents or guardians and advising the minor of the advisability of dialogue and communication with them about their health, avoiding handing over clinical documentation to third parties without their consent, except in situations of serious risk.
4. From the age of 16 , the confidentiality of the minor must be preserved as if he were of legal age, leaving the decision on the communication of information to his parents or guardians to his personal discretion, except in situations of serious risk.

These situations remind us that respect for the principle of autonomy of the person being cared for inevitably requires the principle of responsibility. It is in the presence of vulnerable individuals that the principle of autonomy must be interpreted within the framework of ethical responsibility.

General principles to consider in the protection of confidentiality:

1. The holder of the right to information is the person being served, whether a minor or not, except for those specific situations established by law.
2. Data and medical records of the person being treated cannot be accessed if there is no active professional care relationship.
3. We must be very careful with the management of information in public places: reception, open offices, elevators, etc., avoiding conversations in passageways or common areas.
4. Avoid leaving files, reports, or any documents with identifying information in common or freely accessible areas.
5. Non-clinical staff (administrative staff, receptionists, etc.) may have access to information with a derived duty of secrecy; therefore, they have the same duty to protect confidential information as clinical professionals.
6. Information to parents or guardians will be provided primarily in person, avoiding as far as possible any means of communication that do not allow for reliable identification of the sender and receiver.
7. In case of reasonable doubt, it is recommended to consult the relevant ethics committee.

What are the limits of confidentiality for minors?

• As a general rule, it is recommended to respect confidentiality when caring for a minor. The need to inform parents or guardians can be assessed based on the minor's level of maturity, the risk involved, and only in accordance with the best interests of the child.
• When the minor gives express consent and in justified cases.
• The consent of the minor (or their legal representative, if applicable) is essential for disclosure, but it is not sufficient. Even with permission, the professional should only disclose the information if absolutely necessary, for a benefit that outweighs the duty of confidentiality.
• Confidentiality in health matters is not an absolute duty, but a relative one. The following situations may exempt one from confidentiality:

1. In case of serious risk to the health or life of the child.
2. In the event that the minor is a victim of a crime, neglect or abuse.
3. If the professional's silence causes a very likely harm to the person being cared for.
4. Possible damage to third parties, weighing the severity of the damage, its probability, the identification of potential victims, the probability that an intervention can mitigate it or failure in the use of other means other than the breach of confidentiality.

Specific situations that require special attention:

Separated parents

• Both parents must be informed of the demand for assistance from the service.
• As a general rule, the parent requesting the lawsuit must inform the other parent of the referral and provide the necessary information and contact details.
• The information will preferably be given to both parents jointly, unless there is a legal impediment or situations that harm the child.

Minors under guardianship

There are the same duties and rights regarding privacy, confidentiality, and information.

In any ethical conflict in the field of confidentiality, the defense of the right to privacy of the person being cared for (minors or not) must prevail and only the existence of a serious risk to their own integrity ( principle of non-maleficence ) or that of third parties ( principle of justice ) would justify the breach of professional secrecy.

The support of ethics committees or ethical reflection spaces for professionals is fundamental for the establishment of criteria, guidelines and protocols in the handling of confidentiality and exceptions to the duty of secrecy that may occur in practice.

The specific training of professionals who care for people must incorporate skills (abilities and attitudes) that allow the improvement of care relationship models with our patients, incorporating their perspective and their own values in decision-making.