CASE OF K.H. AND OTHERS v. SLOVAKIA
(Application no. 32881/04)
28 April 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of K.H. and Others v. Slovakia,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 7 April 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
B. Civil proceedings
1. Action against the J. A. Reiman University Hospital in Prešov
12. Six applicants brought an action against the J.A. Reiman University Hospital (Fakultná nemocnica J. A. Reimana) in Prešov (“the Prešov Hospital”) on 13 January 2003.
2. Action against the Health Care Centre in Krompachy
C. Constitutional proceedings
1. Complaint of 24 May 2004
2. Complaint of 25 June 2004
D. Subsequent developments
II. RELEVANT DOMESTIC LAW
A. Code of Civil Procedure
B. Health Care Act 1994
“Section 16 – Medical records
1. The keeping of medical records shall form an inseparable part of health care.
2. All medical institutions ... shall be obliged to keep medical records in written form ... The documents are to be dated, signed by the person who established them, stamped and numbered on each page ...
3. Medical records shall be archived for a period of 50 years after the patient’s death. ...
5. A medical institution shall be obliged to provide medical records on a specific written request and free of charge, to a public prosecutor, investigator, police authority or court in the form of excerpts, to the extent that they are relevant in the context of criminal or civil proceedings. The medical records as a whole cannot be put at the disposal of the above authorities.
6. A patient, his or her legal representative ... shall have the right to consult medical records and to make excerpts thereof at the place [where the records are kept] ...
8. A medical institution shall provide an expert appointed by a court with information from medical records to the extent that it is necessary for preparing an expert opinion ...
11. An excerpt from a person’s medical record ... shall contain exact and true data and give an overview of the development of the health of the person concerned up to the date when the excerpt is established. It shall be established in writing on numbered pages.”
“Medical records remain the property of the medical institution concerned. They contain data about the patient and often also about the members of his or her family or other persons. That information being of a strictly confidential and intimate nature, the obligation of non-disclosure extends to them in their entirety. It is therefore necessary to define as precisely as possible cases where a patient or other persons may acquaint themselves with such information.”
C. Health Care Act 2004
“Section 25 – Access to data included in medical records
1. Data included in medical records shall be made available by means of consultation of the medical records to:
(a) the person concerned or his or her legal representative, without any restriction; ...
(c) any person authorised in writing by the person mentioned in point (a) ... subject to the signature of the latter being certified in accordance with a special law ... to the extent that it is specified in the authorisation; ...
(g) an expert appointed by a court or an authority in charge of a criminal case or whom one of the parties has asked for an opinion ...; the extent of data necessary for preparing the opinion shall be determined by the expert ...
2. The persons entitled to consult medical records shall have the right to make excerpts or copies of them at the place where the records are kept to the extent indicated in paragraph 1.”
III. RECOMMENDATION OF THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE No. R (97) 5 ON THE PROTECTION OF MEDICAL DATA
“Rights of access and of rectification
8.1. Every person shall be enabled to have access to his/her medical data, either directly or through a health-care professional or, if permitted by domestic law, a person appointed by him/her. The information must be accessible in understandable form.
8.2 Access to medical data may be refused, limited or delayed only if the law provides for this and if:
a. this constitutes a necessary measure in a democratic society in the interests of protecting state security, public safety, or the suppression of criminal offences; ...”
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for his private and family life, ....
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. Arguments of the parties
1. The applicants
2. The Government
B. The Court’s assessment
Similarly, such a positive obligation was found to exist where applicants sought access to information to social service records containing information about their childhood and personal history (see Gaskin v. the United Kingdom, cited above and M.G. v. the United Kingdom, no. 39393/98, § 31, 24 September 2002).
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal ...”
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. Alleged violation of Article 13 in conjunction with Article 8
In these circumstances, the Court concludes that there has been no violation of Article 13 taken together with Article 8 of the Convention.
B. Alleged violation of Article 13 in conjunction with Article 6 § 1
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 3,500 (three thousand five hundred euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 8,000 (eight thousand euros) jointly to all applicants, plus any tax that may be chargeable to the applicants, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 28 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Judge Šikuta is annexed to this judgment.
PARTLY DISSENTING OPINION OF JUDGE ŠIKUTA
To my regret, I cannot agree with the majority’s conclusion that there has been a violation of Article 6 of the Convention, for the following reasons.
Since the Chamber was unanimous in finding the violation of Article 8 of the Convention, which was the real substance of the case, I was of the opinion that there was no need to examine the complaint under Article 6 of the Convention.
The national courts at two levels of jurisdiction, in two different sets of civil proceedings, granted the applicants’ claim and ordered the J.A. Reiman University Hospital in Prešov and the Health Care Centre in Krompachy to permit all the applicants and their representatives to consult their medical records and to make handwritten excerpts thereof. As regards access to medical records, that was the maximum that was allowed and permitted according to the relevant national legislation in force at the material time. Accordingly, the courts dismissed their request to make a photocopy of the medical documents.
The fact that the Court has found a violation of Article 8 of the Convention because the applicants had no possibility of making copies of their medical records does not mean that they had no access to a court.
I do agree that in such a situation the applicants had only a limited amount of evidence and information in their hands since they were not allowed to make copies of medical records.
I do not agree that this amount of information in their possession was not sufficient to assess the position in their cases and that that amount of information was not sufficient to initiate civil proceedings if appropriate. I do not agree that the unavailability of copies of the records barred the applicants from starting a lawsuit on the basis of the information obtained in the course of the consultation of their files.
If additional information to that in the possession of the applicants were needed in the course of civil proceedings, a national court, according to the standard practice, would appoint an expert, whose role would be to study originals of the medical records, to examine the state of health of the applicants and to reply to qualified medical questions put forward by the court dealing with the case. This procedure would come into play regardless of whether the applicants had available copies of all medical records, and regardless of whether the applicants also attached to the lawsuit a private expert opinion prepared by another expert upon their request. The national court would be obliged, after the commencement of the proceedings, to appoint of its own motion another independent expert from the List of Court Experts, who would have access to all originals of medical records in line with Section 16 of the Health Care Act 1994 (Zákon o zdravotnej starostlivosti č. 277/1994 Z.z.).
The applicants did not even try to bring such civil proceedings. Therefore the arguments of the applicants to the effect, that the lack of copies was very important for potential civil litigation concerning any possible claims for damages, for discharge of the burden of proof and for the assessment of the prospects of success of any future civil actions are of a hypothetical and speculative nature. Here I fully agree with the Constitutional Court’s conclusions. In addition, if the applicants were unable to support their lawsuit sufficiently with more evidence because of statutory restrictions, the courts would not reject such lawsuit and would not disadvantage the applicants as regards their burden of proof, but would order both health institutions – the University Hospital in Prešov and the Health Care Centre in Krompachy, to disclose all originals or relevant excerpts of the applicants’ medical records.
Such broad and wide interpretation of the right of access to a court goes far beyond the Court’s established case-law. In the case of McGinley and Egan v. The United Kingdom (judgment of 9 June 1998), which is to a certain extent the most similar to this case, the Court did not find a violation of Article 6 § 1 of the Convention, on the basis that a procedure was provided for the disclosure of documents which the applicants failed to utilise, and under such circumstances it could not be said that the State denied the applicants effective access to the PAT (Pension Appeal Tribunal). We now have the same situation in the instant case; the applicants could initiate civil proceedings, in the course of which all relevant medical records of the applicants would be disclosed according to Section 16 of the 1994 Health Care Act. The applicants did not bring any such proceedings and they therefore failed to utilise an existing available procedure.
In conclusion, I am of the opinion, that the applicants in the instant case did have a limited amount of information in their hands since they were not allowed to make copies of all medical records, but they were not limited to such an extent and in such a manner, as would bar their effective access to a court and would violate Article 6 § 1 of the Convention.