Anne-Marie Andersson v. Sweden (72/1996/691/883) 27 August 1997: - lack of possibility for a patient, prior to the communication of personal and confidential medical data by medical authority to a social services authority, to challenge the measure before a court

Sweden - lack of possibility for a patient, prior to the communication of personal and confidential medical data by medical authority to a social services authority, to challenge the measure before a court (Secrecy Act 1980 and Social Services Act 1980)

I. PRELIMINARY OBSERVATIONS

Deceased applicant’s son had sufficient interest to justify continuation of the examination of the case.

Conclusion: affirmative (unanimously).

Court had no jurisdiction to entertain applicant’s Article 8 complaint.

II. ARTICLE 6 § 1 OF THE CONVENTION

If chief psychiatrist possessed information about the applicant patient to the effect that intervention by Social Council was necessary for protection of her under age son, the psychiatrist was under a duty to report immediately to the Council - that duty extended to all data in her possession potentially relevant to Council's investigation into need to take protective measures with respect to the son and depended exclusively on relevance of those data - scope of this obligation and fact that the psychiatrist enjoyed very wide discretion in assessing what data would be relevant - in this regard, no duty to hear applicant's views before transmitting the information - a "right" to prevent communication of such data could not, on arguable grounds, be said to be recognised under national law.

Conclusions: inapplicable (five votes to four) and no violation (eight votes to one).

THE CIRCUMSTANCES OF THE CASE

8. The applicant, Mrs Anne-Marie Andersson was a Swedish citizen. She was born in 1943 and died in 1996 (see paragraph 6 above). She lived in Gothenburg, where she worked as a taxi driver.

9. At the time of the events in question, Mrs Andersson was divorced and living with her youngest son, who was born in 1981. From May 1988 onwards, Mrs Andersson was unable to work as a result both of dental problems which caused her severe pain and anxiety about a dispute with her landlord.

10. In April 1989 she contacted a psychiatric clinic in Gothenburg in order to receive a medical certificate which would enable her to claim sickness benefit from the Health Insurance Office. From 20 August 1991 the applicant was treated by the chief psychiatrist who drew her attention to the possible detrimental effect her situation might have on her son and advised her to seek support for him from the children's psychiatric clinic or the social authorities. Mrs Andersson, however, considered that her son was a normal child who was not in need of any particular help.

11. In January 1992 the psychiatrist informed Mrs Andersson that since the child's health might be at risk, she (the psychiatrist) had an obligation under Swedish law to contact the social authorities (see paragraphs 16-17 below). Accordingly, the former telephoned a social welfare officer at the Social Council (socialnämnden) and informed her of the applicant's health problems.

12. By letter the same day, the psychiatrist notified the applicant of the information imparted to the Council. The relevant part of the letter read as follows:

"As you know, I have several times asked you to seek support for your son who, naturally, cannot remain unaffected by your severe pains. As I have not been able to convince you that this is necessary, I have called [a] social welfare officer and expressed my concern. Unfortunately, I find myself obliged under the law to take this action in an attempt to reduce future problems for the boy (and thereby also for you)."

13. The psychiatrist's concern for the applicant's son was shared by the headmaster and a teacher at the school he attended. In October 1991 they had contacted the Social Council and expressed concern about his learning difficulties and his general state of health. Following this, the Council commenced an investigation which, with Mrs Andersson's agreement, led to the placement of her son in a non-residential therapeutic school on 2 March 1992.

ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

31. The applicant contended that there had been a violation of Article 6 § 1 of the Convention which, in so far as is relevant, reads:

"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] tribunal..."

Under this provision, she complained that she had not been afforded a possibility, prior to the communication of the psychiatrist's statement to the Social Council, to challenge the measure before a court (see paragraph 21 above).

32. The Government disputed that Article 6 § 1 was applicable and maintained that, in any event, it had been complied with in the present case (see paragraphs 22-23 above). The Commission, for its part, considered that the provision was applicable and that its requirements had been met (see paragraph 22 above).

33. The Court must first examine whether Article 6 § 1 was applicable to the disagreement between the applicant and the Swedish authorities as to the disclosure of her medical data. It reiterates that, according to the principles laid down in its case-law (see, for instance, the judgments of Zander v. Sweden, 25 November 1993, Series A no. 279-B, p. 38, § 22, and Kerojärvi v. Finland, 19 July 1995, Series A no. 322, p. 12, § 32), it must ascertain whether there was a dispute ("contestation") over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious; it may relate not only to the existence of a right but also to its scope and the manner of its exercise; and the outcome of the proceedings must be directly decisive for the right in question. Finally, the right must be civil in character.

34. Under the rule on confidentiality contained in Chapter 7, section 1, of the Secrecy Act, a duty of confidentiality applied to the kind of data at issue in the present case (see paragraph 15 above). The provision was evidently designed to protect a patient's interests in non-disclosure of medical data.

35. On the other hand, according to Chapter 14, section 1, of the Secrecy Act the rule of confidentiality did not apply where a statutory obligation required the disclosure of information to another authority (see paragraph 16 above). In the case under consideration, if the chief psychiatrist possessed information about the applicant patient to the effect that intervention by the Social Council was necessary for the protection of her under age son, the psychiatrist was under a duty to report immediately to the Social Council. That duty extended to all data in her possession which were potentially relevant to the Social Council's investigation into the need to take protective measures with respect to the son (see paragraphs 17-19 above) and depended exclusively on the relevance of those data (section 71, subsections 2 and 4, of the Social Service Act).

36. In addition to the scope of this obligation, as described above, the Court notes that the psychiatrist enjoyed a very wide discretion in assessing what data would be of importance to the Social Council's investigation (ibid.). In this regard, she had no duty to hear the applicant's views before transmitting the information to the Social Council (see paragraph 21 above).

Accordingly, it transpires from the terms of the legislation in issue that a "right" to prevent communication of such data could not, on arguable grounds, be said to be recognised under national law (see the Masson and Van Zon v. the Netherlands judgment of 28 September 1995, Series A no. 327, pp. 19-20, §§ 49-52). No evidence suggesting the contrary has been adduced before the Court.

37. Having regard to the foregoing, the Court reaches the conclusion that Article 6 § 1 was not applicable to the proceedings under consideration and has therefore not been violated in the present case.

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