The deportation of persons with a legally binding deportation decision and the associated disclosure of medical data has been a topic for the Central Ethics Committee (CEC) of the SAMS for years. The desire of the authorities to carry out deportation efficiently must not undermine the medical-ethical obligations of physicians, especially with regard to professional secrecy.
Due to the legal changes that came into force in May 2022, the responsibility for the decision on fitness for transport now lies explicitly and exclusively with the physician commissioned by the State Secretariat for Migration (SEM) and not with the attending (prison) physician. Only medical data that is really necessary for the execution of the expulsion may be transmitted, not to the authorities, but from doctor to doctor.
New Medical Report Form
A working group with doctors and representatives of the authorities has developed a new form for the transmission of health data relevant to assessing transportability. It will be available to doctors treating people affected by a repatriation order (e.g. those detained pending deportation). It will enable doctors to respond to requests from the authorities to transmit the relevant health data.
The new form will undergo a pilot phase lasting several months from 2 October 2023 in the cantons of Solothurn, Thurgau and Vaud, to identify any necessary adjustments to the process. After completion of the pilot phase, the form is to be introduced nationwide.
The second form remains valid and must be used in all other cantons until the end of the pilot phase.
Doctors have already been informed through an article published in the Schweizerische Ärztezeitung (SÄZ) and will be informed again once the form is to be introduced nationwide.
Medical secrecy preservation
Medical secrecy should be respected when these health data are transmitted. Ideally, consent to data disclosure is available from the person to be deported. If it is refused, it is strongly recommended to the attending doctor to obtain a release from medical secrecy by the superior authority, despite the new provision of the law and ordinance.
List of contraindications and medical report form
In order to assess whether contraindications exist, the prison physician can use the list «Medical contraindications to forced return by air» published by the SEM (download below). The document lists the most important diagnoses regarded as contraindications for air travel.
Any contraindications are submitted using the form «Medical report in cases of return/enforcement of removal orders» (see above).
The (prison) physician may only report contraindications with the patient’s consent. If the patient withholds consent, even though contraindications exist, the competent authorities may, on request, release the physician from his/her duty to maintain confidentiality. The procedure is described in detail in Appendix G to the guidelines on «Medical practice in respect of detained persons».
Two different roles for physicians
Physicians accompanying forced returns and assessing returnees’ fitness for transport assume an expert function. They have a different role when providing medical care for patients in pre-deportation detention: they determine whether there are any contraindications to a planned forced return, but are not responsible for assessing fitness for transport.
In 2013, the Central Ethics Committee (CEC) of the SAMS published an opinion on the medical aspects of forced returns, calling for a change to the existing «fit-to-fly» system. The demands and concerns formulated in this statement essentially remain valid despite the changes in the legal situation in 2022.