Federal Supreme Court Recognises Nullity
of a Release from Medical
Confidentiality Due to Serious
Procedural Errors (Decision 2C_332/2024)

In its decision of 21 July 2025, the Federal Supreme Court declared null and void a decree of the Office of Public Health and Social Affairs of the Canton of Schwyz which had released a leading medical officer of a clinic from medical confidentiality vis-à-vis the criminal prosecution authorities.

The appellant had been admitted in 2022 for in-patient treatment at a clinic in the Canton of Schwyz, during which his consumption of prohibited pornography was discussed. After the clinic’s request for release from medical confidentiality had been granted, the clinic filed a criminal complaint against the patient concerning hard-core pornography.

The ensuing legal dispute centred on whether the decree of the health authority lifting medical confidentiality was void, given that the appellant only became aware of the release when his counsel inspected the criminal investigation file and thus had neither been involved in the release proceedings nor been served with the actual decree.

The Cantonal Government and, subsequently, the Administrative Court of the Canton of Schwyz dismissed the patient’s appeals against the release decree. The Federal Supreme Court upheld the patient’s appeal, set aside the judgment of the lower court and, due to particularly serious procedural defects, declared the release decree null and void for the following reasons:

• No participation in the proceedings: Despite being a party, the appellant was not involved in the release proceedings and was not able to state his position in advance.
• Violation of the right to be heard: The decree was never served on the appellant, although Art. 29 para. 2 of the Federal Constitution and the relevant cantonal procedural provisions require such service. In the absence of a statutory basis for waiving service, the deliberate failure to serve constituted a severe procedural error.
• No healing of the violation: The defect could not be remedied because, lacking service, the appellant never had the opportunity to challenge the release decree effectively.
• Significant disadvantage resulting from non-service: The appellant was unable to contest the release in advance or prevent disclosure of information subject to professional secrecy. The defect was obvious at the time the decree was issued and resulted in a significant disadvantage.
• Deficient application by a third party: Instead of the holders of the professional secret—i.e., the physicians bound by medical confidentiality—the request for release was filed by their employer. The decree was consequently served on the employer, not on the individual holders of the secret. This contravenes the wording of Art. 321 no. 2 of the Swiss Criminal Code, which provides that only the holder of the professional secret may apply for release.
• Insufficient statement of danger: Personal data protected by medical confidentiality merits particular protection. A release from medical confidentiality requires an actual danger to high-ranking legal interests. The lower court justified the restriction of party rights merely by referring to an abstract risk that the patient might compromise the collection of evidence. Such an abstract risk is insufficient to justify so serious a violation of the right to be heard.
• No threat to legal certainty: Declaring the decree void does not seriously impair legal certainty.

The Federal Supreme Court therefore granted the request for a declaration of nullity, with the consequence that the release decree has no legal effect whatsoever.

BGer 2C_332/2024
Press release from the Federal Supreme Court