Abortion in Argentina: why do doctors continue to denounce patients?

Can a doctor report a patient to the police who comes to the hospital for emergency medical help, such as a abortion in progress, because someone understands that this patient has committed a crime? The law, the Argentine Supreme Court and international treaties are clear and forceful in their answer: no, it is not possible. Why, then, does this continue to happen in a country where the Abortion is this legal more than two years ago?

For writing A patient arrives, a complaint goes outArgentinian lawyers Maria Lina Carrera, Natalia Saralegui Ferrante there Gloria Orrego-Hoyos They conducted more than 100 interviews across the country, visited hospitals, and reviewed court records and curricula for medical and legal courses.

In this book, edited by Siglo XXI, they transform everything into a meticulous portrait of the process of violation of medical secrecy that, although it is based on the Argentine experience, it can also be extrapolated to other countries in the region and even to violent minorities, such as migrants or the collective LGBT+.

What the authors raise in A patient arrives, a complaint goes out it is not enough to change the law, expand rights and encourage consultation. None of this works if you don’t pay enough attention to how the system receives them when women ask for help.

The obstetrician on duty received me and told me “what did you prick yourself with, what did you take, what did you do to yourself”. The same one who told my dad he had to Make the claim (Yamila, Rosario).

The medical staff brought the police into the delivery room, they operated on her without anesthesia and accused her of abortion (Maria Magdalena, Tucuman).

Back home, the doctors examine Inés and take her to the hospital. They handcuffed her to the bed. So begins his criminal case for felony aggravated homicide for the link (Ines, Buenos Aires).

Knowing these testimonies, the question immediately arises:Can a patient be reported to the police? who goes to the hospital for urgent medical help because someone realizes that this patient has committed a crime? No, says the law but, as we will demonstrate in this book, it is done.

And not only in the case of obstetric events. In February 2022, in the context of a distribution of adulterated cocaine in the western suburbs of Buenos Aires that resulted in dozens of deaths and others seriously hospitalized, the words of Gabriela Torres, head of the Secretariat for Global Policies in matters of drugs of the Argentine Nation (Sedronar), have been reproduced in the media and social networks:

We must accompany those who are uncomfortable at home and do not dare to go to the hospital because, since consumer issues are so discriminated against, they are afraid.

What allows the gear of the medical complaint against patients and his judicial tolerance? The criminal code clearly establishes that the disclosure without just cause of any information of which the professionals and other medical interveners have become aware within the framework of the medical consultation it’s a crime. Indeed, in his art. 156 condemns anyone who “having had knowledge, by reason of his condition, his trade, his employment, his profession or his art, of a secret the revelation of which may cause harm, reveals it without just cause”.

There is only one person who can authorize the disclosure of information: the patient. But what is thejust cause”? It is ultimately a set of values. The just cause implies the existence of a public interest in the disclosure of this secrecy superior to the interest protected by the secrecy. There must be a sufficiently important interest so that, in balance with the rights of the patient, it justifies the breach of the commitment of confidentiality, essential in the doctor-patient relationship.

According to the latest interpretation made by the Supreme Court of Justice of the Nation on the standard in 2010, just cause cannot be based on the individual belief of medical personnel that he faces a crime:

There is no other interest at stake in the case, since there was no danger and there was no serious prejudicial lawsuit in progress which had to be stopped for avoid harm to the life or physical integrity of third parties, so that any other contrary hypothesis can be excluded (CSJN, Baldivieso).

The interest of the State in prosecuting crimes never configures the just cause required by the norm, nor is it a sufficient reason for breach of secrecy. In this context, medical secrecy and the duty of confidentiality are the rule. The causes of crossing this border, the exception.

But, as we will see in this book, this does not happen in reality. And the complaint as the point of origin of the criminal records in the cases of criminalization of obstetrical events and in those related to the consumption, possession or trade of drugs continues to be a constant.

Where is the tipping point that allows these complaints to succeed? The road is too long and in some cases it remains unpunished until the end, from hospitals to courts. Does the medical profession have complaint of fear or complaint of moral or religious beliefs? Mandatory complaint? Forced by whom? What happens in court? Why sometimes the defenses do not raise it or the legal operators do not notice it?

During the investigation of the criminalization of obstetric events which resulted in the publication of the book They say I had a babyin 2020 it became clear that in Argentina there are some medical personnel who denounce patients for facts that are revealed during the medical consultation, to which many women and girls arrive urgently, in serious condition , sometimes unconscious or at risk of death.

Although, as we expected, this occurs primarily in two groups of offending behaviors – those related to the exercise of sexual and reproductive rights, and those related to the use or possession of drugs – it could also be extended to other cases. As we will see in these pages, its repercussions go as far as the effects that the revelation of the secret can have on, for example, migrants or very violent populations such as those of the collective LGBTTIQ+. Moreover, its harmful effects are maintained, even after the approval of the Law on voluntary termination of pregnancy in December 2020.

The engine that gave life to this investigation was a mass of doubts. A cascade of questions about why and how complaints against patients are generated in the corridors of hospitals, take shape in the courts and result in criminal records, arrests, convictions.

A patient with an obstetric emergency arrives, a complaint comes out. It is our revolving door, the one that guides this investigation. Because it goes against what the law says, because it goes against the current criteria of the Supreme Court, because it goes against the mandates that emanate from the international treaties incorporated into the National Constitution. Few are surprised, the legal agencies approve.

“What are they going to say about Confidential medical information What was not said?” The question comes from a lawyer, a reference in criminal law. He has worked for years in justice and teaches in law schools. The question surprises, but not really.

Conversations about medical professional secrecy over the past few decades have indeed been numerous. But his interpretation has been and is varied. There are those who consider that the medical staff of public hospitals, because they are civil servants, have an obligation to report any criminal act of which they are aware, even within the framework of the medical consultation. Others believe that if in doubt, the police should be informed. Among them, there are also those who think that denouncing is not denouncing.

Despite the fact that, as we have pointed out, a decision by the Supreme Court of Justice of the Nation clearly reinforces the obligation to maintain professional secrecy For all healthcare personnel, the stories of people being criminalized on the basis of medical complaints are repeated across the country. And the persistence of the problem is invisible, both because it is not known and because it is not discussed in hospitals and courts, let alone in universities.

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