CASE OF ANNE-MARIE ANDERSSON v. SWEDEN
No violation of Art. 6-1;No violation of Art. 13
John Freeland;B. Walsh
8. The applicant, Mrs Anne-Marie Andersson was a Swedish citizen. She was born in 1943 and died in 1996 (see paragraph 6 above). She lived in Göteborg, where she worked as a taxi driver. 9. At the time of the events in question, Mrs Andersson was divorced and living with her youngest son, who was born in 1981. From May 1988 onwards, Mrs Andersson was unable to work as a result both of dental problems which caused her severe pain and anxiety about a dispute with her landlord. 10. In April 1989 she contacted a psychiatric clinic in Göteborg in order to receive a medical certificate which would enable her to claim sickness benefit from the Health Insurance Office. From 20 August 1991 the applicant was treated by the chief psychiatrist who drew her attention to the possible detrimental effect her situation might have on her son and advised her to seek support for him from the children's psychiatric clinic or the social authorities. Mrs Andersson, however, considered that her son was a normal child who was not in need of any particular help. 11. In January 1992 the psychiatrist informed Mrs Andersson that since the child's health might be at risk, she (the psychiatrist) had an obligation under Swedish law to contact the social authorities (see paragraphs 16–17 below). Accordingly, she telephoned a social-welfare officer at the Social Council (socialnämnden) and informed her of the applicant's health problems. At the request of that officer the psychiatrist submitted the following written statement on 16 January 1992: “Anne-Marie Andersson has had a polyclinical contact with a psychiatrist at [the clinic] since 19 April 1989, from 20 August 1991 with the undersigned. The reason has been a pain condition in connection with dental problems and this has caused her being on sick-leave as from May 1988. The patient does not consider herself to be mentally ill but she has accepted the contact with us solely due to her need to be put on the sick-list. In my opinion she has an extreme personality and her thoughts are, in conversations here, occupied by her severe pain condition and her dissatisfaction with the treatment she has received. She has once in a while had her son with her. He seemed quiet and sensitive. The undersigned, as well as others in the medical service with whom the patient has been in contact, have worried about the possible effect of her severe pain condition on the son whom she cares for alone. I have on several occasions drawn her attention to this, inter alia in letters (please see copy), and asked her to contact [the children's psychiatric clinic] or the social authorities. As, apparently, this has not been done, I called you today and I now send a written account of the case as agreed. As I do not find that, from a psychiatric point of view, we can do more for the patient, who does not consider herself to be mentally ill, I have referred her to the district medical officer and she will, thus, have no further contact with me.” 12. By letter the same day, the psychiatrist notified the applicant of the information imparted to the Council. The relevant part of the letter read as follows: “As you know, I have several times asked you to seek support for your son who, naturally, cannot remain unaffected by your severe pains. As I have not been able to convince you that this is necessary, I have called [a] social-welfare officer and expressed my concern. Unfortunately, I find myself obliged under the law to take this action in an attempt to reduce future problems for the boy (and thereby also for you).” 13. The psychiatrist's concern for the applicant's son was shared by the headmaster and a teacher at the school he attended. In October 1991 they had contacted the Social Council and expressed concern about his learning difficulties and his general state of health. Following this, the Council commenced an investigation which, with Mrs Andersson's agreement, led to the placement of her son in a non-residential therapeutic school on 2 March 1992. 14. 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 access to public documents, subject to exceptions set out in the Secrecy Act (Sekretesslagen, 1980:100). 15. One of the exceptions to this general rule relates to confidentiality of information in the field of health and medical care and is set out in chapter 7, section 1, of the Secrecy Act, which provides as follows: “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 ...” 16. Notwithstanding this rule of confidentiality, in certain circumstances health and medical-care authorities are required to submit information to another authority. Thus, chapter 14, section 1, of the Secrecy Act provides the following: “Secrecy does not prevent ... the disclosure of information to another authority, if an obligation to disclose the information is laid down in an act of law or a government ordinance.” 17. Such an obligation follows from section 71 of the Social Services Act 1980 (Socialtjänstlagen, 1980:620), subsections 2 and 4 of which read as follows: “Authorities whose activities relate to children and young persons as well as other authorities within health and medical-care and social services are obliged immediately to report to the Social Council if, in the course of their activities, they receive information which may imply that an intervention by the Social Council is necessary for the protection of a minor. This also applies to the employees of such authorities and to physicians, teachers, nurses and midwives who are not so employed. ... Authorities, employees and practitioners referred to in subsection 2 are obliged to give the Social Council all information which may be of importance to an investigation of a minor's need of protection.” 18. At the time of the enactment of the Social Services Act, the Parliament's Standing Committee on Health and Welfare (Riksdagens socialutskott) stated that the reporting obligation was not limited to cases where it was clear that the Social Council would have to intervene. In addition, unconfirmed information or information which was difficult to assess should also be reported, if it implied that a child might be in need of support or assistance from the Council. In such cases it would be for the Council to investigate whether there was any factual basis for the information in question and whether there was a need for any particular measure (see the report of the Standing Committee on Health and Welfare, SoU 1979/80:44, p. 113). 19. The obligation to report only concerns information which is of relevance to the Social Council's investigation. It does not extend to other information concerning the persons in question (see Government Bill 1989/90:28, p. 132). It is for the reporting authority or practitioner to decide which information is covered by the reporting obligation. 20. Information which is submitted to the Social Council is protected by the rule of confidentiality provided by chapter 7, section 4, of the Secrecy Act: “Secrecy applies within the social services to information concerning the individual's 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 ...” 21. 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 respect of 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 or to be notified of the disclosure afterwards. 22. Under chapter 20, section 3, of the Penal Code (Brottsbalken), a physician who, intentionally or through negligence, discloses information which should be kept confidential according to law is guilty of breach of professional secrecy. Proceedings may be brought in the ordinary courts by the public prosecutor or, if the public prosecutor decides not to prosecute, the aggrieved individual. Such a breach of professional secrecy may also constitute a basis for claiming damages under chapter 2, section 1, or chapter 3, section 1, of the Damage Compensation Act (Skadeståndslagen, 1972:207). Action may be taken by the individual against the physician or his or her employer. 23. 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.