AI and professional secrecy in Belgium and Switzerland: what psychologists should check

In Belgium and in Switzerland, a psychologist's professional secrecy is a criminal-law duty. Using an AI tool for your notes brings a technical provider into that secret. The useful question is not "am I allowed to use AI?" but "is the provider bound by secrecy, and what does it actually see of my clients?".

Belgium: what the texts say

The new Criminal Code, article 352

The 2024 Criminal Code came into force on 1 September 2026, according to Justel. Former article 458 is replaced by article 352. The official French text reads:

« La violation du secret professionnel consiste pour une personne dépositaire, par état ou par profession, des secrets qu'on lui confie, qui, hors le cas où elle est appelée à rendre témoignage en justice ou devant une commission d'enquête parlementaire et celui où la loi l'oblige ou l'autorise à faire connaître ces secrets, à révéler, délibérément, ces secrets. Cette infraction est punie d'une peine de niveau 2. »

In short: anyone who holds secrets "by status or by profession" and deliberately reveals them, outside court testimony, a parliamentary inquiry or a legal duty or permission, commits an offence punished at level 2. Under article 36, level 2 ranges from a declaration of guilt to six months to three years of imprisonment. The text names no profession and does not mention assistants. For facts before 1 September 2026, article 2 provides that the most favourable provisions apply.

The code of ethics (Royal Decree of 2 April 2014)

Article 5 of the code of ethics still refers to article 458 in its consolidated version. It also sets a wider duty of discretion that applies at all times.

Article 14 defines shared secrecy. A psychologist may share confidential data under cumulative rules: « information préalable, accord du maître du secret, dans le seul intérêt de celui-ci, limité a ce qui est strictement indispensable, uniquement avec des personnes soumises au secret professionnel oeuvrant dans le cadre d'une même mission. » (prior information, the client's agreement, in the client's sole interest, limited to what is strictly necessary, and only with people bound by secrecy working on the same mission).

A software vendor does not work on your clinical mission. In our reading, sending notes to an AI tool cannot rest on shared secrecy. It rests on your duty to protect your documents: article 19 requires that documents from your work be presented and stored so as to safeguard professional secrecy. It also requires the client's free and informed consent before their data are captured in any form, including on a computer, and adds that this applies to any transfer of data, whatever the purpose.

Article 21 sets the floor: scrupulous respect for professional secrecy is the minimum. The GDPR comes on top: your tool is a processor bound by contract (see our guide GDPR for psychologists in Belgium).

Switzerland: what the texts say

Article 321 of the Criminal Code and assistants

Article 321 SCC lists psychologists among the professions bound by secrecy, « ainsi que leurs auxiliaires, qui révèlent un secret à eux confié en vertu de leur profession ou dont ils ont eu connaissance dans l'exercice de celle-ci, sont, sur plainte, punis d'une peine privative de liberté de trois ans au plus ou d'une peine pécuniaire. » (as well as their assistants who reveal a secret confided to them or learned in their professional activity are liable, on complaint, to a custodial sentence of up to three years or a monetary penalty).

Paragraph 2 provides that disclosure is not punishable with the consent of the person concerned or with written authorisation from the authority. The text does not say whether an external IT provider counts as an "assistant". We advise not betting on that qualification and requiring a written secrecy commitment in the contract.

The FADP: processors, transfers abroad, confidentiality

Article 9 FADP allows processing to be entrusted to a processor if a contract provides for it and if « aucune obligation légale ou contractuelle de garder le secret ne l'interdit » (no legal or contractual duty of secrecy prohibits it). You must make sure the processor can guarantee data security, and it may only subcontract with your prior authorisation. That last point targets the AI model provider used by the vendor.

Article 62(2) FADP punishes, on complaint, with a fine of up to 250,000 francs anyone who intentionally discloses secret personal data learned while working on behalf of a person bound by secrecy. The vendor's staff working for you are therefore covered.

Article 16(1) allows disclosure abroad if the Federal Council has found that the country offers an adequate level of protection. Check that the hosting country is on that list.

PsyPA and the FSP code of ethics

Article 27(e) of the Psychology Professions Act (PsyPA) requires people practising psychotherapy under their own professional responsibility to observe professional secrecy under the applicable rules. The FSP code of ethics (version of 1 August 2024) goes further on three useful points:

• Art. 16. Members make their staff and auxiliary personnel aware of their duty of secrecy and instruct them accordingly, and « Ces instructions doivent être données par écrit. » (these instructions must be given in writing).
• Art. 19. Information may only be reused (teaching, research, publication) once anonymous, which means identity cannot be deduced from it, or only with disproportionate effort. A pseudonymised text whose key leads back to the client does not meet that bar.
• Art. 22. Capturing the sound or image of a session requires the client's prior written agreement, stating the nature, scope and use of that capture.

Belgium and Switzerland side by side

• Criminal provision. Belgium: article 352 of the 2024 Criminal Code (article 458 before 1 September 2026). Switzerland: article 321 SCC.
• Assistants. Belgium: not mentioned. Switzerland: expressly mentioned.
• Penalty. Belgium: level 2 (up to three years' imprisonment, or another penalty of that level). Switzerland: up to three years' custodial sentence or a monetary penalty, on complaint.
• Lifting secrecy. Belgium: court or parliamentary testimony, a legal duty or permission. Switzerland: consent of the person concerned or written authorisation from the authority.
• Sharing. Belgium: article 14 of the code, with people bound by secrecy on the same mission. Switzerland: article 17 of the FSP code, with colleagues treating the same client, and with staff and assistants as far as necessary.
• Processors. Belgium: GDPR processing agreement. Switzerland: article 9 FADP, contract and no conflicting secrecy duty.
• Sanction for the provider. Belgium: its contract with you. Switzerland: its contract, plus article 62(2) FADP.
• Client agreement. Belgium: free and informed consent (article 19 of the code), noted in the record. Switzerland: prior written agreement for audio capture (article 22 FSP, for members).

Ten questions to ask an AI tool

We advise asking these questions in writing and keeping the answers.

• 1. Contract. Is there a signed, readable processing agreement before any client data goes in?
• 2. Secrecy. Does the contract include a secrecy commitment from the vendor and its staff that survives the end of the contract?
• 3. Pseudonymisation. Are the name and identifying details replaced before the text reaches the AI model, not just hidden on screen?
• 4. Audio. Is the audio file kept, even for a few days? The right level is none.
• 5. Training. Are your data used to train or improve a model, by the vendor or its AI supplier?
• 6. Location. In which country are data stored, and in which country does AI processing run? Both answers matter.
• 7. Sub-processors. Is the list published, and will you be told before a change?
• 8. Access. Who at the vendor can read a session report, and when?
• 9. Encryption. Are data encrypted in transit and at rest?
• 10. Exit. Can you export and then have all data deleted, and how fast?

Contract clauses to look for (template)

We advise requesting these clauses in writing, with the ten questions.

• Secrecy. "The provider and anyone acting for it are bound to secrecy on all client data, during and after the contract. The provider informs its staff of this duty in writing."
• Training. "No data is used to train or improve an AI model, by the provider or its sub-processors."
• Audio. "No audio file is kept after the transcript has been produced."
• Pseudonymisation. "Names and identifying details are replaced before any processing by an AI model."
• Location. "Data are stored and processed in [country] and are not transferred elsewhere without the practitioner's prior written agreement."
• Sub-processors. "The provider only engages a new sub-processor after informing the practitioner, who may object."
• Exit. "At the end of the contract, the provider returns the data in a readable format, then deletes them and confirms this in writing."

Fictional example: one tool, two countries

Léa, a psychologist in Geneva, and Thomas, a psychologist in Namur, are fictional. They are testing "Tool N", a fictional AI notes product, and receive the following answers to their email.

• Contract. A processing agreement exists, but with no secrecy clause for staff.
• Location. Storage in Germany, AI processing by a US supplier.
• Audio. Kept for 30 days "for support".
• Training. "Anonymised data used to improve the service".
• Pseudonymisation. The name is masked on screen but sent as is to the model.

Thomas's analysis (Namur). The US supplier takes data out of the European Union, which needs a transfer basis and client information. Retained audio and a name sent to the model widen the circle of people with access to the secret, which sits badly with article 19 of the code. Thomas asks for an addendum (secrecy clause, no training, no audio retention) and pauses use until then.

Léa's analysis (Geneva). Article 9 FADP requires Léa's prior authorisation for the US sub-processor, and article 16 a recognised country or other safeguards. The missing secrecy clause weakens her position under article 321 SCC and the FSP code, which requires written instructions to auxiliary staff. Audio kept for 30 days falls under article 22 FSP: without the client's written agreement, Léa does not use it. She rules the tool out.

Common mistakes

• Citing article 458 for facts after 1 September 2026. The applicable text is article 352 of the 2024 Criminal Code. Some official pages, such as the Psychologists' Commission page, still cite article 458 and its former penalties.
• Checking storage and forgetting the model. Data hosted in Europe can still be sent to an AI model located elsewhere.

Why Delta fits this case

Delta is built around these requirements: data stay in Europe, in France, on infrastructure certified for health data; the client's name and identifying details are pseudonymised before the AI; no audio file is kept, as audio is only used during the session to produce the transcript; data are never used to train a model; and they are encrypted in transit and at rest. It is the clinical assistant that keeps the memory of each client, from the session report to an up-to-date record, while you stay in control of the contract and of client information (see what Delta is, our clinical document templates and our guide to psychologist software in Belgium).

See also the patient record in Belgium and the EU AI Act for psychologists.

Sources

• Belgian Criminal Code 2024, law of 29 February 2024, articles 2, 36 and 352 (Justel, accessed 4 November 2026)
• Royal Decree of 2 April 2014 on the psychologists' code of ethics, articles 5, 14, 19 and 21 (Justel, consolidated to 14 June 2018)
• Swiss Criminal Code, article 321 (fedlex, accessed 4 November 2026)
• Swiss Federal Act on Data Protection, articles 9, 16 and 62 (fedlex, accessed 4 November 2026)
• FSP code of ethics, version of 1 August 2024