The Right of Access to Patient’s Health Data: A Comparative Analysis of the Case Law of the European Court of Human Rights, the European Court of Justice, and the Practice of the Courts of the United States and Some European Countries

Abstract

The legal relationships between the physician and the patient involve a duty to maintain the confidentiality of information concerning the patient’s health which is based upon the acting legislation and case law. The non-fulfillment of the said duty mostly brings to civil or criminal responsibility. However, both legislation and case law of various states bear a substantial number of exemptions from the duty of medical confidentiality. With the enhancement of the patient’s role in decision-making concerning his treatment, various issues concerning his data privacy arose. Apart from his data privacy maintenance, there is an issue with the patient’s right to access his medical records. The purpose of access may not be as prosaic as it may initially look like, as in various jurisprudence, including the case-law of international courts, plaintiffs frequently applied to courts to obtain an order for medical records productions so as to file an action against hospitals for negligence. Hence, medical records would be used as evidence of negligence at trial. The positions of the United States courts and the courts in Europe (the given paper embraces several trials from Germany and Portugal) may have divergencies concerning direct access to medical data, the proprietary status of the health records, a right to access of third parties, and its conditions, the categories of personal data banned from patient’s access under certain circumstances, etc. The issue of access to medical records in known in the ECJ jurisprudence since the mid-70s, especially in a number of judgments wherein the plaintiffs sued various EEC bodies attempting to impugn the decision of their human resources department concerning their ineligibility of holding a certain position in the structures of EEC – therein, the defendants did not give reasonable justifications for such decisions and didn’t present any medical documentation to the prospective plaintiffs as a proof of their unfitness for office. Since the 1980s, similar actions were filed to the European Court of Human Rights. In some cases, not only the issue of the patient’s right to inspection of the respective health records was risen, but the aspect of accessing the information on the plaintiff’s biological forbearers as well (trials of Odievre v. France and Godelli v. Italy). Keywords: Medical records, data privacy, a right to access to medical records, medical confidentiality, medical negligence, the proprietary status of health records.