Judgment of the Pechersky District Court, issued on July 25, 2006
Judgment of the Pechersky District Court, issued on July 25, 2006
Ms. P. submitted a civil claim against the Ministry of Public Health of Ukraine, the Ministry of Labor and Welfare, the Occupational Injury and Disease Social Insurance Fund to find the Order of Ministry’s and Fund’s joint Order of 3 November 2004 no.532/274/136-oc/1406 non-compliant with higher legal force acts in part to point information about person’s initial and final diagnoses and disease code according to International Statistical Classification of Diseases and Related Health Problems, 10th revision, in medical certificate.
The claimant alleged that, according to the disputed act, public health units have the obligation to specify diagnosis of the person in his medical disability certificate where after this certificate shall provide in place of employment and in such manner information about person’s state of health become open to general public in place of employment. In the plaintiff’s opinion such situation breaches her rights and legitimate interests, in particular, constitutional ban to collect, use and disseminate confidential information, (установленный) prescribed by the Article 32 of the Ukrainian Constitution. Ms. P. alleged that her constitutional rights to privacy were violated, when she had to submit a medical certificate (no. 948052 of 14 February 2005) because it led to the disclosure of the information regarding her disease, an acute respiratory viral infection, on her workplace.
The Court made the following statements in its decision:
The legislation requires the employee to provide a medical certificate on its workplace to confirm that the cause of work absence is a medical condition in order to receive proper financial support as an insured.
Medical certificate must be submitted for both civil-law relationships (as a ground for dismissal by the employer) and public relationships (as a ground for relevant payments from specialized social state insurance funds). The required certificate form contains some columns that have to be filled after presenting in place on workplace by “the timekeeper or authorized person”, “human resources department or authorized person”, “social insurance commission or authorized person who provide benefits payment”, “accountant/payment department”, “head of organization and chief accountant”. It shall be assumed that all the abovementioned representatives of the employer and of the social insurance would then become aware of the personal information on the initial and final diagnoses of the employee.
This procedure set up by the disputed legal act, requires providing personal information on diagnosis on the workplace without having regard to the diagnosed consent.
The Court concluded that such requirement was unlawful and did not compatible with higher legal force acts.
The Court has stressed out that the requirement to present diseases information through authoritative orders in terms of legal acts result in a breach of the Article 3 of the Constitution. This Article states that “Human being, his or her life and health, honor and dignity, inviolability and security are recognized in Ukraine as the highest social value. Human rights and freedoms and their guarantees determine the essence and orientation of the activity of the State. The State is answerable to the individual for its activity. To affirm and ensure human rights and freedoms is the main duty of the State”.
The Article 32 of the Constitution states: “No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine. The collection, storage, use and dissemination of confidential information about a person without his or her consent shall not be permitted, except in cases determined by law, and only in the interests of national security, economic welfare and human rights.”
The Court stated that safety, economic well-being and human rights requirements did not justify the obligation to provide medical personal information on workplace.
The Court also emphasized that the requirement to provide personal state health (diagnosis) information defined the scope and content of constitutional ban to collect, store, use and disseminate confidential information without the person’s consent, given that such restriction of constitutional right is established by subordinate legislation not by law.
The Article 8 of the European Convention of Human Rights, ratified by Ukraine, states: “ There shall be no interference by a public authority with the exercise of this right except such as 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 moral, or for protection of the rights and freedoms of others”.
The Court concluded that the requirement to provide information about one’s state of health on workplace is an interference with its private life. The practice of the European Court stresses out that private life covers the personal identity, which includes information on its state of health. The European Court in its judgment M.S. v. Sweden of 27 August 1997 pointed: “Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general. The domestic law must afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8 of the Convention”. In another Judgment Z. v. Finland of 25 February 1997, the European Court underlined: “The disclosure of such data may dramatically affect his or her private and family life, as well as social and employment situation, by exposing him or her to opprobrium and the risk of ostracism”.
The Court pointed out that the requirement to provide information about a person’s diagnosis on workplace was also contrary to the Law of Ukraine “The fundamentals of the legislation of public health” from 19 November 1992, in particularly to Article 4 of this Law that provided “respect for human and citizen rights and freedoms in public health sphere and connected with it guarantees assuring”.
The sick leave procedure was established by the Article 41 of the Law of Ukraine On the fundamentals of the legislation of public health and the Law did not provide any requirement to communicate the diagnosis of patients to their employers as a ground to leave work and receive appropriate compensations.
The Court also stresses out that providing information about the state of a person’s health in the medical certificate represents a threat to medical confidentiality. According to the disputed protocol, a doctor has the right not to write his patients’ diagnosis on a certificate on the condition of the agreement of the chief of his department.
On one hand, the authors of the disputed Instruction have given the decision-making power at the discretion of the doctor, not of the patient. On the second hand, the right of the doctor not to write the diagnosis depends on his chief of health care department.
As for requirement to specify in the certificate a disease code according to International Statistical Classification of Diseases and Related Health Problems the Court found it also unlawful course International Statistical Classification of Diseases and Related Health Problems is publicly available edition, presented in all medical and public scientific libraries and open to general public.
The Court stated that the requirement to specify the diagnosis on the certificate is also taken in violation of the Article 5 of Law of Ukraine on information of 2 October 1992 that prohibits the collection of personal data without the consent of the concerned person. There was also no alternative to the certificate - the Ukrainian legislation did not suggest any other document that can be used in order to prove the reason of the sick leave and to access the appropriate social compensation.
The Article 286 of Civil Code of Ukraine stated: “1. A natural person shall have the right to health secrecy, to the secrecy of the fact of addressing for medical aid, to confidentiality of the diagnosis and information received during medical examination. 2. It is forbidden to require and submit information about the diagnosis and methods of treatment of a natural person to the places of work or study.”
The Court did not agree with the arguments raised by the defendant, which alleged that the disputed Order was registered by the Ministry of Justice and is lawful, because neither the Code of Administrative Legal Proceedings nor any other legislation providing automatically legal recognition or any provisions of any normative legal act as after its registration and pull it out Administrative Court jurisdiction.
The court found the Order of the Ministry of Public Health of Ukraine, the Ministry of Labor and Welfare, the Occupational Injury and Disease Social Insurance Fund of 3 November 2004 no.532/274/136-oc/1406 illegal and annulled the part on the requirement to provide information on the patient’s initial and final diagnoses and disease codes in medical certificate.
The text of the judgment in Russian is accessible by the following link http://hiv-legalaid.org
Робин С. Шарма