M.S. v. SWEDEN



AS TO THE ADMISSIBILITY OF

Application No. 20837/92

by M.S.

against Sweden

The European Commission of Human Rights sitting in private on

22 May 1995, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 September 1992

by M.S. against Sweden and registered on 23 October 1992 under file

No. 20837/92;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 30 August 1994 and the observations in reply submitted

by the applicant on 25 October 1994;

Having deliberated;

Decides as follows:

THE FACTS

a. The particular circumstances of the case

The applicant, a Swedish citizen born in 1951, resides at O.,

Sweden. Before the Commission she is represented by her lawyer,

Mrs. Siv Westerberg.

The facts of the case, as submitted by the parties, may be

summarised as follows.

On 9 October 1981 the applicant allegedly injured her back while

working at a day care centre. She was at the time pregnant and

contacted the same day the women's clinic at the hospital in O.

She was on sick leave until 4 April 1982. Later, she could no longer

manage her job and upon medical advice she eventually stopped working

due to her back problems. In 1992, she requested compensation under the

Industrial Injury Insurance Act (Lagen om arbetsskadeförsäkring,

1976:380) from the Social Insurance Office (Försäkringskassan).

Upon request the applicant thereafter received a copy of the file

which had been compiled by the Social Insurance Office for the purpose

of examining her claim. From the documents in the file she learned

that, on 25 March 1992, the Social Insurance Office had requested the

above women's clinic to submit copies of her medical records from the

time of the alleged injury. She further learned that, on 30 March 1992,

the head of the clinic in reply had submitted copies of her medical

records covering the period October 1981 - February 1986. The records

contained, inter alia, information on an abortion she had had in

October 1985, partly due to previous back problems. The applicant had

not in any way been involved in, or consented to, the disclosure of the

information.

On 19 May 1992 the Social Insurance Office rejected the

applicant's request for compensation under the Industrial Injury

Insurance Act, finding that the applicant had not, as alleged, injured

herself at work. Following the applicant's request for a review, the

Social Insurance Board (Socialförsäkringsnämnden), on 5 August 1992,

upheld the decision of the Social Insurance Office. The applicant's

appeal to the County Administrative Court (Länsrätten) of the County

of O. was rejected on 21 December 1992. The Court found that the

applicant had suffered from a disease affecting her back since the age

of 14 and that she had changed her initial account of the alleged

injury. After a further appeal, the case is apparently pending before

the Administrative Court of Appeal (Kammarrätten) in Jönköping.

b. Relevant domestic law

Under Sections 1 and 2 of Chapter 2 of the Freedom of the Press

Act (Tryckfrihetsförordningen), which is part of the Swedish

Constitution, everyone is entitled to have access to public documents

unless, within defined areas, access is limited by law. The Secrecy Act

(Sekretesslagen, 1980:100) contains such limitations.

The main provision on the confidentiality of information in the

field of health and medical care is found in Chapter 7, Section 1 of

the Secrecy Act, the relevant parts of which read as follows:

(translation)

"Secrecy applies ... in the field of health and medical

care to information on the individual's state of health or

otherwise concerning his or her private life, unless it is

clear that the information can be disclosed without any

harm to the individual or persons closely related to him or

her. ..."

As appears from this provision, there is a presumption of

confidentiality. It is applicable not only in relation to the public,

but also in relation to other public authorities. There are, however,

legal provisions to the effect that health and medical care authorities

shall submit information to another public authority. Thus, Chapter 14,

Section 1 of the Secrecy Act provides the following:

(translation)

"Secrecy does not prevent ... the disclosure of information

to another public authority, if an obligation to disclose

the information is laid down in an act of law or a

Government ordinance."

Such an obligation is laid down in Chapter 8, Section 7 of the

Industrial Injury Insurance Act which, in relevant parts, reads as

follows:

(translation)

"A public authority ... [is] obliged to submit, on request,

to the courts, the National Social Insurance Board [or] the

Social Insurance Office ... information on a named person

concerning circumstances of importance to the application

of this Act. ..."

In this context, a physician employed by a municipal hospital,

as in the present case, is regarded as a representative of a public

authority. A corresponding duty of the Social Insurance Office to

request information is found in the Ordinance on Industrial Injury

Insurance and State Injury Compensation Guarantee (Förordning om

arbetsskadeförsäkring och statligt personskadeskydd, 1977:284), Section

13 of which provides, in so far as relevant, the following:

(translation)

"The Social Insurance Office shall obtain a physician's

opinion on a reported industrial injury. ..."

Furthermore, the person applying for compensation under the

Industrial Injury Insurance Act is, according to Chapter 8, Section 6

of the Act, obliged to provide the Social Insurance Office with

information of importance.

If information is submitted to the Social Insurance Office, the

confidentiality of that information is regulated by Chapter 7, Section

7 of the Secrecy Act which, in so far as relevant, provides the

following:

(translation)

"Secrecy applies at the Social Insurance Office, the

National Social Insurance Board and the courts in matters

arising under the legislation on ... industrial injury

insurance ... in respect of information on an individual's

state of health or otherwise concerning his or her private

life, if it can be assumed that the individual concerned or

persons closely related to him or her will be harmed if the

information is disclosed. ..."

Thus, whereas a presumption of confidentiality applies within the

field of health and medical care to information concerning an

individual's private life, there is no such presumption in respect of

information kept at the Social Insurance Office.

Under the Freedom of the Press Act and the Secrecy Act, there is

a right to appeal against a decision not to grant access to public

documents. There is, however, no such right in regard to decisions to

grant access to information contained in public documents. Furthermore,

there is no right for the individual concerned to be consulted before

such information is disclosed.

Under Chapter 20, Section 3 of the Penal Code (Brottsbalken), a

physician who discloses information which should be kept confidential

according to law is guilty of breach of professional secrecy.

Proceedings may be brought by the public prosecutor or the aggrieved

individual. A breach of professional secrecy may also constitute a

basis for claiming damages under the Tort Liability Act (Skadestånds-

lagen, 1972:207).

Public authorities and their employees are, furthermore, subject

to the supervision of the Chancellor of Justice (Justitiekanslern) and

the Parliamentary Ombudsman (Justitieombudsmannen). The Chancellor and

the Ombudsman investigate whether those exercising public powers abide

by laws and follow applicable instructions and may prosecute a certain

individual or refer the matter to disciplinary action by the relevant

authority.

COMPLAINTS

1 The applicant maintains that the women's clinic's submission of

copies of her medical records to the Social Insurance Office without

her knowledge or consent interfered with her right to respect for her

private life within the meaning of Article 8 para. 1 of the Convention.

She furthermore maintains that this particular interference was not

justified by any of the reasons set out in para. 2 of that provision.

2 The applicant also contends that she had no remedy to complain

about the clinic's disclosure of information, which allegedly violated

not only Article 8 of the Convention but also Swedish law. She invokes

in this respect Articles 6 and 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 September 1992 and

registered on 23 October 1992.

On 6 April 1994 the Commission (Second Chamber) decided to

communicate the application to the respondent Government, pursuant to

Rule 48 para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

30 August 1994, after an extension of the time-limit fixed for that

purpose. The applicant replied on 25 October 1994.

THE LAW

1 The applicant maintains that the women's clinic's submission of

copies of her medical records to the Social Insurance Office without

her knowledge or consent violated Article 8 (Art. 8) of the Convention,

which reads as follows:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

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 and morals, or for the protection of the rights and

freedoms of others."

The Government submit in the first place that Article 8

(Art. 8) of the Convention is not applicable and that this complaint

should thus be declared incompatible with the Convention ratione

materiae, as the applicant, when requesting compensation under the

Industrial Injury Insurance Act, must be regarded as having waived her

right to protection of confidential information in relation to the

Social Insurance Office. In this respect, the Government contend that

the obligation of the Office to request information from a physician

and the corresponding duty of a physician employed by a municipal

hospital to submit such information were easily accessible elements of

Swedish law, for which reason the applicant was able to anticipate that

the information in question would be obtained by the Office. It was

furthermore not surprising that the clinic submitted information on the

gynaecological treatment performed in 1985 as the treatment was related

to her back condition. The Government further submit that it should be

taken into account that the information in question has not been made

public and will, due to its highly personal nature, remain confidential

at the Social Insurance Office.

For the same reasons, the Government submit, in the second place,

that the applicant cannot claim to be a victim, within the meaning of

Article 25 (Art. 25) of the Convention, of a violation of Article 8

(Art. 8), for which reason the complaint is incompatible with the

Convention ratione personae.

The applicant submits that she could hardly foresee, when she

requested compensation from the Social Insurance Office, that

information on gynaecological treatment performed several years after

the alleged industrial injury would be submitted by the women's clinic

to that Office. In this connection, the applicant also refers to the

fact that the information submitted is not protected by the same level

of confidentiality at the Social Insurance Office as at the clinic.

The Commission recalls that a waiver of a right guaranteed by the

Convention, in so far as it is permissible, must be established in an

unequivocal manner (Eur. Court H.R., Pfeifer and Plankl judgment of

25 February 1992, Series A no. 227, p. 16, para. 37). The Commission,

noting that the applicant's alleged waiver of a domestic right to

protection of confidential information concerns her right to respect

for private life under Article 8 (Art. 8) of the Convention, finds that

no express waiver was made by the applicant in the present case nor can

an unequivocal waiver be inferred from the fact that the applicant made

a request for compensation under the Industrial Injury Insurance Act.

With respect to the Government's submission that the information

in question has not been made public and will, due to its highly

personal nature, remain confidential at the Social Insurance Office,

the Commission considers that this issue falls to be examined together

with the merits of the case.

The Commission thus concludes that Article 8 (Art. 8) of the

Convention applies to this complaint.

As regards the substance of the complaint, the Government contend

that the complaint should be declared inadmissible for being manifestly

ill-founded. The Government maintain that, for the reasons submitted

in relation to its claims concerning incompatibility, there has been

no interference with the applicant's rights under Article 8 (Art. 8).

Should, however, the Commission find that there has been such an

interference, the Government contend that it has been justified, as it

was in accordance with the law, in particular the provisions of the

Industrial Injury Insurance Act, pursued the legitimate aims of

protecting the economic well-being of the country and the rights of

others and was proportionate to the aims pursued and thus necessary in

a democratic society. As regards the conformity with domestic law, the

Government submit that the rationale behind the provision obliging the

Social Insurance Office to request information is that the Office

should acquire all information relevant to a particular compensation

request. The Government share the clinic's apparent opinion that the

information on the gynaecological treatment was of relevance to the

applicant's request, for which reason the information was submitted in

accordance with the law although the Office's request explicitly

referred to the time when the alleged injury occurred.

The applicant submits that the disclosure of information to the

Social Insurance Office was not justified in the present case, as it

was not necessary for the Office to have access to medical records on

her gynaecological treatment. Instead, the Office could have obtained

information by requesting the applicant to submit a doctor's

certificate on the alleged back injury. In this way, the applicant

could have decided herself whether she wanted information on the

gynaecological treatment to be disclosed to the Office and, if such

information was necessary for the Office's determination of her

compensation request, whether she wanted to pursue the request. The

applicant further submits that the clinic's submission of information

on the gynaecological treatment was not in accordance with domestic

law, as it went beyond the Social Insurance Office's request.

The Commission considers, after a preliminary examination of the

complaint under Article 8 (Art. 8) of the Convention in the light of

the parties' submissions, that it raises questions of fact and law

which require an examination of the merits. This part of the

application cannot, therefore, be declared inadmissible as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for inadmissibility

have been established.

2 The applicant also contends that she had no remedy which she

could use to complain about the women's clinic's disclosure of

information. She invokes in this respect Articles 6 and 13

(Art. 6, 13) of the Convention.

Article 6 para. 1 (Art. 6-1) of the Convention reads, in its

relevant parts, as follows:

"In the determination of his civil rights and obligations

..., everyone is entitled to a ... hearing by [a] ...

tribunal ..."

Article 13 (Art. 13) of the Convention reads as follows:

"Everyone whose rights and freedoms as set forth in this

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."

The Government submit that Article 6 (Art. 6) is not applicable

to the present case and that this complaint should thus be declared

incompatible with the Convention ratione materiae. The Government

maintain that the applicant had no standing under Swedish law in

procedures concerning the granting of access to official documents.

Thus, she could not appeal against a decision to grant access to

confidential information concerning her, nor was her consent to the

disclosure of information required. Furthermore, there was an

obligation under the legislation concerning industrial injury insurance

to forward the information to the Social Insurance Office. For these

reasons, the Government contend that the applicant cannot claim, on

arguable grounds, that she was entitled under Swedish law to protection

of the information in question in relation to the Social Insurance

Office. Thus, there was in the present case no "right" at stake.

The Government further submit that, in the light of their

observations on the admissibility of the complaints under Articles 6

and 8 (Art. 6, 8) of the Convention, Article 13 (Art. 13) is not

applicable and this complaint should thus be declared incompatible with

the Convention ratione materiae. Should the Commission not accept this

argument, the Government contend that the complaint is manifestly ill-

founded. In this respect, the Government maintain that, in the absence

of a right to appeal against a decision to submit certain information

to the Social Insurance Office, the aggregate of remedies provided for

under Swedish law satisfies the conditions of Article 13 (Art. 13). The

Government refer to the possibility for the applicant to bring criminal

or civil action against the physician or to lodge complaints with the

Chancellor of Justice or the Parliamentary Ombudsman.

The applicant submits that, in cases like the present one, there

should be a possibility for the individual concerned to appeal to a

court before a physician's decision to disclose information is

executed.

The Commission considers, after a preliminary examination of the

complaints under Articles 6 and 13 (Art. 6, 13) of the Convention in

the light of the parties' submissions, that they raise questions of

fact and law which require an examination of the merits. This part of

the application cannot, therefore, be declared inadmissible as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for inadmissibility

have been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C. A. NØRGAARD)