Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20022/92

by Anne-Marie ANDERSSON

against Sweden

The European Commission of Human Rights sitting in private on

22 May 1995, the following members being present:

MM. C.A. NØRGAARD, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 February 1992

by Anne-Marie Andersson against Sweden and registered on 22 May 1992

under file No. 20022/92; Having regard to the reports provided for

in Rule 47 of the Rules of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 30 August 1994 and the observations in reply submitted

by the applicant on 26 October 1994;

Having deliberated;

Decides as follows:

THE FACTS

a. The particular circumstances of the case

The applicant, a Swedish citizen born in 1943, resides at

Gothenburg. Before the Commission she is represented by her lawyer,

Mrs. Siv Westerberg.

The facts of the case, as submitted by the parties, may be

summarised as follows.

It appears that the applicant for some time had problems with her

landlord and that she was eventually evicted from her flat. Following

her eviction she apparently lived together with her son, born in 1981,

in several different flats allocated to her by the social authorities.

Certain court proceedings commenced concerning the applicant's

eviction, ending with a judgment of the Court of Appeal (Hovrätten) for

Western Sweden on 4 July 1988. The applicant submits that these court

proceedings caused her mental and psychosomatic problems. In addition

to these difficulties she experienced some dental problems which also

influenced her mentally. As from May 1988 the applicant was on sick

leave.

In April 1989, the applicant contacted a psychiatric clinic in

Gothenburg, in particular due to the strains on her caused by her

dental problems. From 20 August 1981, she was treated by the chief

physician who, on several occasions, drew the applicant's 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. It appears, however, that the

applicant did not follow this advice.

In January 1992, the chief physician, acting in accordance with

a reporting obligation under the Social Services Act (Socialtjänst-

lagen, 1980:620), contacted the social authorities and informed them

of the applicant's health problems. At the request of the social

authorities the physician submitted, on 16 January 1992, a written

statement, which read as follows:

(translation)

"[The applicant] 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

pains 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. She

has accepted the contact with us solely due to her need to

be put on the sick-list.

She has, in my opinion, an extreme personality and her

thoughts are, in conversations here, occupied by her severe

pains and her dissatisfaction with the treatment she got.

Her son has, on a few occasions, been 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 pains on the son

she takes care of 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, as

agreed, a written account of the case.

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."

The applicant's medical records were, apparently, not submitted

to the social authorities. By letter the same day, the physician

notified the applicant of the information imparted to the social

authorities. The relevant part of the letter read as follows:

(translation)

"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 social

welfare officer [M.-B. J.] 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)."

The chief physician'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 authorities and expressed concern

about his learning difficulties and his general state of health.

Following this, the social authorities commenced an investigation

which, on 2 March 1992, led to the placement of the son in a special

therapeutic school, which he still attends. The placement was made with

the applicant's consent and the school fee is paid by the social

authorities.

b. Relevant domestic law

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 have access to public documents

unless, within defined areas, access is limited by law. The Secrecy Act

(Sekretesslagen, 1980:100) contains such limitations.

The main provision on the confidentiality of information in the

field of health and medical care is found in Chapter 7, Section 1 of

the Secrecy Act, the relevant parts of which read as follows:

(translation)

"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. ..." As appears from the above provision, there is a

presumption of confidentiality. It is applicable not only

in relation to the public, but also in relation to other

authorities. There are, however, legal provisions to the

effect that health and medical care authorities shall

submit information to another authority. Thus, Chapter 14,

Section 1 of the Secrecy Act provides the following:

(translation)

"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."

Such an obligation is laid down in Section 71 of the Social

Services Act, subsections 2 and 4 of which read as follows:

(translation)

"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 doctors, 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."

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 did not depend on

it being evident that the Social Council had to intervene. Also

unconfirmed information or information which was difficult to assess

was to be reported, if it implied that a child might be in need of

support or assistance from the Council (cf. Report of the Standing

Committee on Health and Welfare, SOU 1979/80:44, p. 113).

If information is submitted to the Social Council, Chapter 7,

Section 4 of the Secrecy Act affords the same level of confidentiality

as the above provision applicable to the health and medical care

authorities. Chapter 7, Section 4 provides, in so far as relevant, the

following:

(translation)

"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. ..." 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.

Under Chapter 20, Section 3 of the Penal Code (Brottsbalken), a

physician who discloses information which should be kept confidential

according to law is guilty of breach of professional secrecy.

Proceedings may be brought by the public prosecutor or the aggrieved

individual. A breach of professional secrecy may also constitute a

basis for claiming damages under the Tort Liability Act (Skadestånds-

lagen, 1972:207).

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.

COMPLAINTS

1. The applicant maintains that the chief physician's submission of

information to the social authorities without her knowledge or consent

interfered with her right to respect for her private life within the

meaning of Article 8 para. 1 of the Convention. She furthermore

maintains that this particular interference was not justified by any

of the reasons set out in para. 2 of that provision.

2. The applicant also contends that she had no remedy to which she

could complain about the chief physician's disclosure of information.

She invokes in this respect Articles 6 and 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 February 1992 and registered

on 22 May 1992.

On 6 April 1994 the Commission (Second Chamber) decided to

communicate the application to the respondent Government, pursuant to

Rule 48 para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

30 August 1994, after an extension of the time-limit fixed for that

purpose. The applicant replied on 26 October 1994.

THE LAW

1. The applicant maintains that the chief physician's submission of

information to the social authorities without her knowledge or consent

violated Article 8 (Art. 8) of the Convention, which reads as follows:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority with the

exercise of this right except such as is 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 and morals, or for the protection of the

rights and freedoms of others."

The Government submit in the first place that the applicant

cannot claim to be a victim, within the meaning of Article 25

(Art. 25) of the Convention, of a violation of Article 8 (Art. 8), for

which reason this complaint should be declared incompatible with the

Convention ratione personae. In the alternative, the Government submit

that the complaint under Article 8 (Art. 8) is manifestly ill-founded.

In support of their first claim, the Government argue that the

applicant could have avoided having information forwarded to the social

authorities by following the chief physician's advice to turn to those

authorities herself and asking for support for her son. Furthermore,

no information has been made public due to the fact that the

information forwarded is protected by the same type of secrecy at the

psychiatric clinic and the social authorities. As regards the

alternative claim, the Government adduce the same reasons for finding

that there has been no interference with the applicant's rights under

Article 8 (Art. 8). Should, however, the Commission find that there has

been such an interference, the Government contend that it has been

justified, as it was in accordance with the law, in particular Section

71 of the Social Services Act, pursued the legitimate aims of

protecting the son's health and rights and was proportionate to the

aims pursued and thus necessary in a democratic society.

The applicant submits that the disclosure of information to the

social authorities was not justified in the present case, as the son

is still living with the applicant and is very well cared for.

Moreover, the social authorities could have obtained the necessary

information by questioning the son. Furthermore, the applicant accepts

that a physician's obligation to report possible maltreatment of a

child to the social authorities is necessary for the protection of the

child. The applicant, however, contends that the child is, in such

cases, sufficiently protected if the social authorities have access to

information on the child. There is thus no need for the authorities to

have access to information also on the child's parents.

The Commission considers that the disclosure by the chief

physician of information on the applicant's mental and physical health

to the social authorities amounted to an interference with the

applicant's right to respect for her private life as ensured by Article

8 para. 1 (Art. 8-1) of the Convention. It must therefore be examined

whether this interference was justified under the terms of Article 8

para. 2 (Art. 8-2). In this respect, the Commission recalls that three

conditions must be satisfied: the interference must be "in accordance

with the law", it must pursue one or more of the legitimate aims

enumerated in para. 2 and it must be "necessary in a democratic

society" for these aims.

As regards the first condition, the Commission finds that the

disclosure of information was in conformity with Swedish law, namely

Section 71 of the Social Services Act.

The Commission further finds that the interference had a

legitimate aim under Article 8 para. 2 (Art. 8-2), namely the interests

of the son, which in this case fall under the expressions "for the

protection of health or morals" and "for the protection of the rights

and freedoms of others".

It thus remains to be determined whether the interference was

"necessary in a democratic society" in the interests of the son.

According to the established case-law of the Commission and the

European Court of Human Rights, the notion of necessity implies that

the interference corresponds to a pressing social need and, in

particular, that it is proportionate to the legitimate aim pursued. In

determining whether an interference is "necessary in a democratic

society", the Commission furthermore has to take into account that a

margin of appreciation is left to the Contracting States. That does not

mean, however, that the Commission's review is limited to ascertaining

whether the respondent State has exercised its discretion reasonably,

carefully and in good faith. Furthermore, it cannot confine itself to

considering the relevant decisions in isolation but must look at them

in the light of the case as a whole. It must determine whether the

reasons adduced to justify the interference at issue are "relevant and

sufficient" (cf. Eur. Court H.R., Olsson judgment of 24 March 1988,

Series A no. 130, pp. 31-32, paras. 67-68).

The Commission considers that the interference created by the

disclosure of information to the social authorities was of a limited

nature, as the information did not become public but remained protected

by the same level of confidentiality as at the psychiatric clinic.

Moreover, the applicant was notified of the disclosure.

Furthermore, the Commission cannot accept the applicant's

argument that the interference went too far as the social authorities

could have obtained the necessary information by questioning the son

and as, in cases where there is a possible danger to a child's health,

there is no need for the authorities to have access to information

about the parents. The Commission considers that normally the mental

and physical health of a parent is likely to affect a child.

Consequently, in most cases the social authorities cannot adequately

assess the need to intervene and protect a child without having access

to information about the parents.

The Commission recalls that the chief physician's reason for

forwarding information on the applicant's health problems to the social

authorities was her concern that these problems might affect the

applicant's son. The physician had earlier informed the applicant about

her concern in this respect and advised the applicant to seek support

for the son. The physician's concern does not seem to have lacked

substance, as personnel at the school the son attended had expressed

similar views in a report to the social authorities which led to the

placement of the son in a special school with the applicant's consent.

In the light of the foregoing and the important interests which

were to be protected the Commission finds that the disclosure of

information to the social authorities was supported by relevant and

sufficient reasons. Having regard to their margin of appreciation,

the Swedish authorities were reasonably entitled to think that this

measure was necessary. Accordingly, the Commission concludes that the

disclosure of information can reasonably be regarded as "necessary in

a democratic society" within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention. It follows that this part of the

application is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2. The applicant also contends that she had no remedy which she

could use to complain about the chief physician's disclosure of

information. She invokes in this respect Articles 6 and 13

(Art. 6, 13) of the Convention.

Article 6 para. 1 (Art. 6-1) of the Convention reads, in its

relevant parts, as follows:

"In the determination of his civil rights and obligations

..., everyone is entitled to a ... hearing by [a] ...

tribunal ..."

Article 13 (Art. 13) of the Convention provides the following:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy

before a national authority notwithstanding that the

violation has been committed by persons acting in an

official capacity."

The Government submit that Article 6 (Art. 6) is not applicable

to the present case and that this complaint should thus be declared

incompatible with the Convention ratione materiae. The Government

maintain that the applicant had no standing under Swedish law in

procedures concerning the granting of access to official documents.

Thus, she could not appeal against a decision to grant access to

confidential information concerning her, nor was her consent to the

disclosure of information required. Furthermore, there was an

obligation under Section 71 of the Social Services Act to forward the

information to the social authorities. For these reasons, the

Government contend that the applicant cannot claim, on arguable

grounds, that she was entitled under Swedish law to protection of the

information in question in relation to the social authorities. Thus,

there was in the present case no "right" at stake.

The Government further submit that, in the light of their

observations on the admissibility of the complaints under Articles 6

and 8 (Art. 6, 8) of the Convention, Article 13 (Art. 13) is not

applicable and this complaint should thus be declared incompatible with

the Convention ratione materiae. Should the Commission not accept this

argument, the Government contend that the complaint is manifestly ill-

founded. In this respect, the Government maintain that, in the absence

of a right to appeal against a decision to report certain facts to the

social authorities, the aggregate of remedies provided for under

Swedish law satisfies the conditions of Article 13 (Art. 13). The

Government refer to the possibility for the applicant to bring criminal

or civil action against the physician or to lodge complaints with the

Chancellor of Justice or the Parliamentary Ombudsman.

The applicant submits that, in cases like the present one, there

should be a possibility for a parent to appeal to a court before a

physician's decision to disclose information on the parent is executed.

She contends that in the present case a court would undoubtedly have

found that it was not necessary to forward the information in question

to the social authorities.

The Commission considers, after a preliminary examination of the

complaints under Article 6 and 13 (Art. 6, 13) of the Convention in the

light of the parties' submissions, that they raise questions of fact

and law which require an examination of the merits. This part of the

application cannot, therefore, be declared inadmissible as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for inadmissibility

have been established.

For these reasons, the Commission by a majority

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the applicant's complaints under Articles 6 and 13 (Art. 6, 13)

of the Convention that she had no remedy which she could use to

complain about the disclosure of information;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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ANDERSSON v. SWEDEN

ANDERSSON v. SWEDEN

LEXI