[Confidentiality and the refusal to give evidence]

The physician's obligation to give evidence as a witness in a preliminary investigation is in an area of conflict between the duty to tell the truth and preservation of professional discretion. These have to be weighed in the individual case. In opposition to the Anglo-American law, where a possible right of the witness to refuse to give evidence is limited by the principle of "finding the truth", the German law of criminal procedure contains far-reaching rights of a physician and so-called professional assistants witness to refuse to give evidence in sections 53, 53a Code of Criminal Procedure in order to protect the professional secrecy. This privilege refers to all facts, that have become known to the doctor or his staff and therefore it goes beyond the area of the medical discretion in section 203 GCC, that only contains secrets, which were confined to the doctor or which have become known to him. The witness can decide whether he either uses his right to refuse to give evidence or gives evidence without being released from medical confidentiality. In the second case, he risks being punished under section 203 GCC. If a physician is considered as witness in a procedure, the medical files are protected from attachment in section 97 subsection 1 numbers 2 and 3 Code of Criminal Procedure. In cases, where the physician is defendant himself, he cannot refer to this protection.