CASE OF I v. FINLAND
Violation of Art. 8;Pecuniary damage - award;Non-pecuniary damage - award
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
5. The applicant was born in 1960. 6. Between 1989 and 1994 the applicant worked on fixed-term contracts as a nurse in the polyclinic for eye diseases in a public hospital. From 1987 she paid regular visits to the polyclinic for infectious diseases of the same hospital, having been diagnosed as HIV-positive. 7. Early in 1992 the applicant began to suspect that her colleagues were aware of her illness. At that time hospital staff had free access to the patient register which contained information on patients’ diagnoses and treating doctors. Having confided her suspicions to her doctor in summer 1992, the hospital’s register was amended so that henceforth only the treating clinic’s personnel had access to its patients’ records. The applicant was registered in the patient register under a false name. Apparently later her identity was changed once again and she was given a new social security number. 8. In 1995 the applicant changed her job as her temporary contract was not renewed. 9. On 25 November 1996, the applicant complained to the County Administrative Board (lääninhallitus, länsstyrelsen), requesting it to examine who had accessed her confidential patient record. Upon request, the director in charge of the hospital’s archives filed a statement with the County Administrative Board, according to which it was not possible to find out who, if anyone, had accessed the applicant’s patient record as the data system revealed only the five most recent consultations (by working unit and not by person) and even this information was deleted once the file was returned to the archives. 10. In its decision of 20 October 1997 the County Administrative Board held that: “Section 12 of the Patient’s Status and Rights Act (laki potilaan asemasta ja oikeuksista, lag om patientens ställning och rättigheter) provides that the health authorities and staff have to comply with the regulations issued by the Ministry for Social Affairs and Health (sosiaali- ja terveysministeriö, social- och hälsovårdsministeriet, “the Ministry”) when preparing and processing patient records. Pursuant to this section the Ministry has issued, on 25 February 1993, Regulation no. 16/02/93. In the said Regulation it is noted that patients records must be prepared having due regard to the secrecy regulations and the protection obligation and the duty to take care pursuant to the Personal Files Act (henkilörekisterilaki, personregisterlagen; Act no. 471/1987). According to the duty to take care, precaution and good registering practices must be observed when gathering, depositing, using and delivering data and these must be done in a manner so as not to infringe unnecessarily the right to privacy of the registered person or his or her benefits and rights. The protection obligation means that data in patient records must be duly protected against unauthorised processing, use, destruction, amendment and theft (sections 3 and 26 of the Personal Files Act). In the said Regulation it is also noted that the patient records must form an entity to ensure that outsiders cannot gain unauthorised access to them and that, in addition to the said obligations, in accordance with the Personal Files Act, the purpose of use of the said data can be taken into account. This way it can be made sure that requisite patient data are only given to the personnel participating in the treatment of the patient. [The applicant] has in her representations alleged that [X], who is working for [the hospital] has ordered up the case history of [the applicant’s ex-husband] and that someone else has ordered up her file or visited the archives and read her file and/or that of [her son] and that the data have been transmitted to [Y] and other staff mentioned in [the applicant’s] representations. [X] has contested having proceeded erroneously. The other persons mentioned in [the applicant’s] representations have contested having had knowledge of the data mentioned therein concerning [the applicant] and her family. According to the director in charge of [the hospital’s] archives it is not possible to retroactively clarify the use of patient records. The data system reveals only the five most recent consultations (by working unit and not by person) but this information is deleted once the file has been returned to the archives. Therefore, the County Administrative Board cannot further rule on whether information contained in the patient records has been used by or given to an outsider. Having regard to the foregoing, the County Administrative Board however finds that the system should record any consultation of patient files as a safeguard of privacy in order to ensure that the responsibility for a possible leak of information can be individualised. For the future, the County Administrative Board draws the hospital’s attention to the protection obligation and the duty to take care provided by the Personal Files Act, and further, to the need to ensure that privacy protection is not put at risk when processing medical data within the hospital. ...” 11. Subsequently, in March 1998, the hospital’s register was amended in that it became possible retrospectively to identify any person who had accessed a patient record. 12. On 15 May 2000, the applicant instituted civil proceedings against the District Health Authority (sairaanhoitopiirin kuntayhtymä, samkommunen för sjukvårdsdistriktet), which was responsible for the hospital’s patient register, claiming non-pecuniary and pecuniary damage for the alleged failure to keep her patient record confidential. 13. On 10 April 2001, the District Court (käräjäoikeus, tingsrätten), having held an oral hearing, rejected the action. Having assessed the evidence before it, including five witness statements, the decision of the County Administrative Board and a statement of the Data Protection Ombudsman (tietosuojavaltuutettu, dataombudsmannen), the court did not find firm evidence that the applicant’s patient record had been unlawfully consulted. 14. The applicant appealed to the Court of Appeal (hovioikeus, hovrätten), maintaining her claim that the hospital had not complied with the domestic law, in breach of her right to respect for her private life. 15. On 7 March 2002, the Court of Appeal, having held an oral hearing, considered that the applicant’s testimony about the events, such as her colleagues’ hints and remarks about her HIV infection, was reliable and credible. Like the District Court it did not, however, find firm evidence that her patient record had been unlawfully consulted. It ordered the applicant to reimburse the respondent’s legal expenses before the District Court and the Court of Appeal, amounting to 2,000 euros (EUR) and EUR 3,271.80 plus interest, respectively. 16. In her application for leave to appeal to the Supreme Court (korkein oikeus), the applicant claimed inter alia that there had been a violation of her right to respect for her private life. 17. On 23 December 2002 the Supreme Court refused leave to appeal. 18. The Finnish Constitution Act (Suomen hallitusmuoto, Regeringsform för Finland; Act no. 94/1919, as amended by Act no. 969/1995) was in force until 1 March 2000. Its section 8 corresponded to Article 10 of the current Finnish Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), which provides that everyone’s right to private life is guaranteed. 19. Until 1 June 1999, the rules governing the use and confidentiality of personal data were laid down in the Personal Files Act of 1987. Sections 6 and 7 of the Act prohibited the processing of sensitive personal data, including information on a person’s health and medical treatment, except within the health authorities. Unauthorised disclosure of personal data was prohibited under section 18 and illegal use of disclosed data was prohibited under section 21. Pursuant to section 26 the data controller had to ensure that personal data and information contained therein were appropriately secured against any unlawful processing, use, destruction, amendment and theft. In this regard, the explanatory report of the Government Bill (no. 49/1986) for the enactment of the Personal Files Act stated that the mere existence of legal provisions did not suffice to guarantee the protection of privacy. In addition, the data controller had to make sure that data were protected de facto. When planning the physical protection of the data system regard must be had to, inter alia, whether the system was manual or automated. The delicate nature of the information naturally affected the scope of the protection obligation. Under section 42, the data controller was liable to compensate pecuniary damage suffered as a result of the use or disclosure of incorrect personal data or of unlawful use or disclosure of personal data. 20. On 1 June 1999, a new Personal Data Act (henkilötietolaki, personuppgiftslag; Act no. 523/1999) entered into force. Section 11 of the Act prohibits processing of sensitive personal data. However, under section 12, health care professionals may process data relating to a person’s state of health, illness, handicap or treatment if they are indispensable in his/her treatment. Section 32 provides that the data controller shall carry out the technical and organisational measures necessary for securing personal data against unauthorised access, accidental or unlawful destruction, manipulation, disclosure and transfer as well as against other unlawful processing. Section 33 lays down a secrecy obligation for those who have gained knowledge of someone’s personal circumstances. Under section 47, the data controller is liable to compensate pecuniary and other damage suffered by the data subject or another person as a result of the processing of personal data in violation of the provisions of the Act. 21. The Patient’s Status and Rights Act entered into force on 1 March 1993. Section 12, as in force until 1 August 2000, provided that the health authorities had to comply with the regulations issued by the Ministry for Social Affairs and Health (“the Ministry”) when creating and processing patients’ personal and medical data. 22. According to the Ministry’s Regulation no. 16/02/93, issued on 25 February 1993, a patient’s privacy had to be secured when creating and processing his/her patient record. The data controller had to make sure that outsiders could not gain unauthorised access to sensitive personal data and that only the personnel treating a patient had access to his/her patient register. 23. Section 13 of the Patient’s Status and Rights Act provided that health care professionals or other persons working in a health care unit were not allowed to reveal to an outsider (that is a person not participating in the treatment of the patient) information contained in the patient documents without the written consent of the patient. The said section has been amended as of 1 August 2000 (Act no. 653/2000) to the effect that it must be recorded in the data file if patient records have been revealed as well as the grounds for the disclosure. 24. Further, the Health Care Professionals Act (laki terveydenhuollon ammattihenkilöistä, lag om yrkesutbildade personer inom hälso- och sjukvården; Act no. 559/1994) contains provisions on the retention of patient documents and their confidentiality (section 16) and on the obligation of secrecy (section 17). 25. Finally, the new Electronic Processing of Client Information Act (laki sosiaali- ja terveydenhuollon asiakastietojen sähköisestä käsittelystä, lag om elektronisk behandling av klientuppgifter inom social- och hälsovården; Act no. 159/2007) entered into force on 1 July 2007. The aim of this Act is to further enforce patients’ rights in the context of the processing of electronic personal data within the social and health care.