K.H. and Others v. Slovakia

In the case of K.H. and Others v. Slovakia (Application no. 32881/04) the ECtHR found - among others - the violation of Article 8 of the ECHR in relation with eight Slovak women of Roma ethnic origin who found that they were unable to conceive after having caesareans suspecting that they were sterilised without their knowledge during the operations.

All applicants were treated at gynaecological and obstetrics departments in eastern Slovakian hospitals during their pregnancies and deliveries. After their last stay in the hospitals, when they delivered their children via caesarean section none of them became pregnant dispite their continuing attempts. The suspected reason for their infertility was that they had been sterilised during their operations by the medical staff of the hospitals.Many of the applicants had been asked to sign documents prior to their delivery or on discharge from the hospital but they were not sure of the content of those documents.

In August and September of 2002 the applicants attempted to obtain access to their medical records through their authorised representative. However the lawyer unsuccessfully asked the management of the hospitals to allow her to consult and photocopy the medical records of the persons who had authorised her to do so. In October of 2002 representatives of the Ministry of Health expressed the view that

section 16(6) of the Health Care Act 1994 did not permit a patient to authorise another person to consult his or her medical records. The above provision was to be interpreted in a restrictive manner and the term “legal representative” concerned exclusively the parents of an underage child or a guardian appointed to represent a person who had been deprived of legal capacity or whose legal capacity had been restricted.

The ECtHR noted that the complaint in issue concerned the exercise of their right of effective access to information concerning their health and reproductive status which is linked to their private and family lives within the meaning of Article 8.

The Court reiterated that there may be positive obligations inherent in effective respect for one’s private life in addition to the primarily negative undertakings in Article 8 of the ECHR. In determining whether or not such a positive obligation exists, the Court will have regard to the fair balance that has to be struck between the general interest of the community and the competing interests of the individual concerned, the aims in the second paragraph of Article 8 being of a certain relevance. The existence of such a positive obligation is well established in the case-law. The Court held, in particular, that a positive obligation arose to provide an “effective and accessible procedure” enabling the applicants to have access to “all relevant and appropriate information”.

In this respect the Court took the view that such positive obligations should extend, in particular in cases where personal data are concerned, to the making available to the data subject of copies of his or her data files. Therefore the ECtHR considered whether the Slovakian authorities had complied with their positive obligation and, in particular, whether the reasons invoked for the refusal of access to personal medical records were sufficiently compelling to outweigh Article 8 of the ECHR. 

The Court dthat the applicants considered that the possibility of obtaining exclusively handwritten excerpts of the medical files did not provide them with effective access to the relevant health documents as the original records contained information which the applicants considered important from the point of view of their moral and physical integrity. The applicants considered it necessary to have all the documentation in the form of photocopies so that an independent expert, possibly abroad, could examine them, and also in order to safeguard against the possible inadvertent destruction of the originals are of relevance. 

The Court held that the arguments put forward by the domestic courts and the Government, namely that the prohibition on making copies of medical records had been justified by the need to protect the relevant information from abuse, are not sufficiently compelling, with due regard to the aims set out in the second paragraph of Article 8 of the ECHR, to outweigh the applicants’ right to obtain copies of their medical records. The Court did not see how the applicants could abuse information concerning their own persons by making photocopies of the relevant documents. Although  protection of medical data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life and respecting the confidentiality of health data is a vital principle in the legal systems of all the member state, however, the risk of such abuse could have been prevented by means other than denying copies of the files to the applicants.

The Court stated that dispite some legislative changes which explicitly provided for the possibility for patients or persons authorised by them to make copies of medical records, the new Slovakian law could not affect the applicants' position in the present case under consideration, therefore there had been a violation of  been of Article 8 of the ECHR. 

Special references:

Point 8 of the Recommendation R (97) 5 on the protection of medical data