Wednesday 29 April 2009

Access to Medical Information

Access to information seems to be one of the themes of the month in Strasbourg. After a judgment against Hungary earlier in April, the Court yesterday issued its judgment in the case of K.H. and others v. Slovakia (24 April, Appl.No. 32881/04). A group of eight Roma women had been treated in hospitals in Slovakia during their pregnancies and afterwards none of them could conceive children anymore. They suspected that they had been sterilised without giving permission for this. This is indeed a practice which has continued to occur in Slovakia over the years and which was criticised last year by the UN's Committee on the Elimination of Discrimination Against Women in its concluding observations on the country's state reports.

In order to find out whether the hospital treatment was indeed the cause of their infertility, as they suspected, and in order to use such potential evidence in proceedings for damages, the women requested access to their medical files in order to make photocopies. The state refused to give them the photocopies. The applicants complained in Strasbourg that this violated their right to private and family life (Article 8 ECHR) and their right to access to Court (Article 6 ECHR), since the possible information in their medical file was essential for assessing their position in future proceedings.

The Court reiterated that Article 8 also entailed positive obligations. This could entail giving people access, regulated by law, to their personal data. In the present case the Court clarfied what it meant to make such a qualified right practical and effective and indicated that the burden of proof is on the state to justify refusal of access, and not on the applicants to justify the reasons for wanting access:

47. Bearing in mind that the exercise of the right under Article 8 to respect for one’s private and family life must be practical and effective (see, for example, Phinikaridou v. Cyprus, no. 23890/02, § 64, ECHR 2007-... (extracts), with further reference), the Court takes the view that such positive obligations should extend, in particular in cases like the present one where personal data are concerned, to the making available to the data subject of copies of his or her data files.
48. It can be accepted that it is for the file holder to determine the arrangements for copying personal data files and whether the cost thereof should be borne by the data subject. However, the Court does not consider that data subjects should be obliged to specifically justify a request to be provided with a copy of their personal data files. It is rather for the authorities to show that there are compelling reasons for refusing this facility.
The Court also found a violation of Article 6 ECHR and importantly held the following in para. 66 of the judgment:

The protection of a person’s rights under Article 6 requires, in the Court’s view, that the guarantees of that provision should extend to a situation where, like the applicants in the present case, a person has, in principle, a civil claim but considers that the evidential situation resulting from the legal provisions in force prevents him or her from effectively seeking redress before a court or renders the seeking of such judicial protection difficult without appropriate justification.
The Slovakian judge dissented on this part of the otherwise unanimous judgment, mentioning amongst others that the applicants did not even try to bring such proceedings.

Not only an important step in the battle of the Roma against these harmful practices, but also in the clarification of what respect for the right to private life means for accessing personal information.

The press release on the case can be found on the Court's website.