Not breach of rights to force doctor to disclose patient records
13 January 2011
Gillberg v Sweden – 41723/06  ECHR 1676 (2 November 2010) – Read judgment
A Swedish professor has failed in his European Court of Human Rights challenge to his conviction for disobeying a court order to hand over sensitive information in medical research, despite having promised the participants that the information would be for his use alone.
As reported in a past blog, the fact of their confidentiality does not preclude the medical records of third party patients being disclosed in legal proceedings. So too in relation to sensitive information given confidentially in the context of medical research, in view of the recent Strasbourg case of Gillberg v Sweden (Application no. 41723/06).
Professor Gillberg, the applicant in this case, was the former director of the Department of Child and Adolescent Psychiatry in Sweden. This Department stored theses on attention-deficit hyperactivity disorder, based on neuropsychiatric research from 1977 to 1992. One hundred and forty-one pre-school children participated in the study. Professor Gillberg alleged that it was a precondition to the research that sensitive information about the participants would be accessible only to himself and his staff.
In 2002, two academics (a sociologist and a paediatrician) independently requested access to the research material from the University of Gothenburg, which refused it on the ground that the data requested was subject to secrecy. The Swedish administrative court of appeal found that the academics had a legitimate interest in the material in question, and should be granted access, subject to various confidentiality conditions.
Contrary to the orders of the Swedish Administrative Court of Appeal, Professor Gillberg refused to transfer the material, and indeed three of his colleagues later destroyed it. Professor Gillberg was convicted of misuse of office, and having failed in his appeals against conviction in national courts, he took his case to the ECHR claiming (among other things) that the conviction infringed his rights under Article 8 (right to privacy) and Article 10 (right to freedom of expression).
His argument under Article 8 was that, having regard to his promise of confidentiality to the families of the children who took part in the research, his criminal conviction infringed his right to private life as set out in Article 8, to which his professional life was a part. The court did not rule on whether there was in fact interference with Professor Gillberg’s private life, because even assuming that there was such an interference, his conviction for misuse of office was justifiable as necessary in a democratic society, and his sentence was not disproportionate.
Professor Gillberg also argued that his right to freedom of expression under Article 10 was infringed. He sought to argue that Article 10 included a ‘negative right’ not to be compelled to express oneself. The ECHR noted that he had not been convicted, however, for failing to give evidence, but for misuse of office in not complying with the judgments of the Administrative Court of Appeal. The ECHR doubted that his conviction amounted to an interference with his Article 10 rights, but again found it unnecessary to determine this question, as the conviction was in any case justifiable as proportionate to the legitimate aim of the prevention of disorder and crime, and the protection of others.
Of course, it would be wrong to accord too much significance to the decision in Gillberg, especially given the fact that it was not his own information that Professor Gillberg was seeking to protect. Instead, he had to construct his challenge on the rather tenuous basis that his conviction for disobeying the order of a national court impermissibly interfered with his own Convention rights, and it would have been surprising had the ECHR in effect validated such disobedience. Rather, the judgment suggests reluctance on the part of the ECHR to challenge the decisions of national courts relating to the disclosure of confidential information. If a UK court orders disclosure of medical information, the odds would seem to be against getting that decision overturned in Strasbourg.
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