Privacy and data protection in everyday medicine and care

Data protection laws in force today include the following principles:

• Principle of legality (Art.4 Para.1 DSG, i.e. Swiss Data Protection Law)
• Principle of good faith (Art.4 Para. 2 DPA)
• Principle of proportionality (Art.4 Para. 2 DPA)
• Principle of earmarking {Art. 4 para. 3 DSG)
• Principle of transparency and recognizability {Art.4 Para. 4 DSG)
• Principle of data accuracy {Art.5 Para.1 DSG, i.e. Swiss Data Protection Law)
• Prinicple of data security (Art.7 DSG, see also in particular VDSG 7,8 and 9).
  

As part of the legislative process for the Electronic Patient Records (EPR), a conscious decision was made not to repeat the general processing principles of data protection in the Electronic Patient Record Act (EPDG). Instead, the federal and cantonal data protection laws apply to the EPR. However, it is important to note that certain data protection provisions in the EPDG may conflict with some of the principles of the FADP and cantonal regulations, in particular the principle of purpose limitation (Art. 4(3) FADP).

Currently, the data contained in the EPR may not be used for purposes other than those specified in the currently applicable EPDG. However, subsequent use of the patient data contained in the EPR for other purposes (e.g. scientific research) could violate the purpose limitation principle.

Gemäß DSG müssen Personendaten und besonders schützenswerte Personendaten angemessen vor unbefugter Vernichtung geschützt werden (Art. 8 Abs. 1 lit. a VDSG). This requires appropriate technical and organizational measures, including an assessment of the risks and the current state of technology (Art. 8 (2) VDSG).

However, the legal text on the EPR does not specify any legally binding parameters for defining the technical specifications for IT security and IT resilience. Since health data are generally personal data requiring special protection, it would therefore be important for minimum technical and organizational standards for the implementation of appropriate (technical) protection of health data to be defined at the legisletive level and for these to be implemented on a mandatory basis in practice, both in the areas of cantonal, public-law liability and in institutions organized under private law in the healthcare sector. Indeterminate legal terms such as ‘appropriateness’ and ‘state of technology’ (cf. Art. 8 (2) VDSG) should be defined more precisely in this context.