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AS TO THE ADMISSIBILITY OF

Application No. 13957/88

by Peter Karl LEHMANN

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 8 November 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 1 August 1986

by Peter karl Lehmann against the Federal Republic of Germany and registered

on 15 June 1988 under file No. 13957/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen, born in 1950 and living in

Berlin. He is represented by Mr. H. Rolshoven, a lawyer in Berlin.

The applicant complains that he was denied access to his

clinical records by the Free University of Berlin and that his

action against the University was dismissed by the Federal Court

(Bundesgerichtshof).

The facts submitted may be summarised as follows:

In April 1977 the applicant voluntarily submitted himself to

treatment in a psychiatric hospital in Baden-Württemberg and from June

to August 1977 in the psychiatric clinic of the Free University in

Berlin. His request to be granted access to his clinical records was

eventually granted by the first institution, not, however, by the Berlin

University. He therefore brought an action and obtained judgments in

his favour in first and second instance. The defendant university

lodged an appeal on points of law (Revision). On 23 November 1982 the

Federal Court (Bundesgerichtshof) quashed the decisions appealed from

and dismissed the action.

While the Federal Court in principle admits that a patient has

a right to inspect his clinical records insofar as they relate to

objectively justified findings and reports on measures of treatment

such as operations and medication, it considers that the situation is

different in the field of psychiatry and psychotherapy. Referring to

its long-standing experience resulting from the handling of similar

matters the Court considered that therapeutical reasons to deny access

may continue to exist even when the patient's condition has improved.

Account had also to be taken of the fact that the attending

practitioner was personally involved and subjective elements of

evaluation could play an important role in the treatment. Therefore

it had to be left to the doctors in question to determine to what extent

the patient should be granted access to the clinical records. The

Court noted that the applicant had had the occasion of informative

talks with the doctors who had treated him.

Insofar as the applicant had motivated his request by stating

that he intended to write a dissertation on his case, the Court pointed

out that his scientific interests had to be weighed against those of

others who also deserved protection. It did not matter that the

applicant's relatives who had given information to the attending

practitioner had not raised any objections to the applicant's

request. The doctors who had to evaluate this information from a

medical point of view could not be expected to have to possibly justify

their conclusions vis-à-vis these persons. Also it might be possible

that the applicant himself misinterpreted his previous situation and

condition and would raise accusations against doctors or informants.

It was therefore in the prevailing interest of these persons that the

information required should not be given.

The applicant's constitutional complaint against the Federal

Court's decision was rejected by a group of three judges of the

Federal Constitutional Court (Bundesverfassungsgericht) on

5 February 1986 as offering no prospects of success.

It is stated in the decision that the Federal Court correctly

weighed the applicant's interests against those of others who also

deserved protection. The finding that the patient's right to

information as part of his right to self-determination and respect of

his personal dignity was limited did not disclose any violation of

constitutional rights. As the Federal Court acknowledged the

applicant's right to be informed about diagnoses and reports

reflecting an objective opinion rather than a subjective evaluation

and pointed out that to this extent information had been given to

him at the occasion of the informative talks with the doctor who

treated him, there was also no violation of the principle of equality.

COMPLAINTS

The applicant considers that the denial of access to the

medical files concerning his treatment violates Articles 8 para. 1

and 10 para. 1 of the Convention.

The applicant further submits he was surprised by the Federal

Court's statements relating to its knowledge of the contents of

medical files in psychiatric matters. The Federal Court should have

given the parties an opportunity to comment on its alleged knowledge.

This would have enabled him to show that, contrary to the Court's

findings, these records contained solely reports based on facts which

are objectively ascertainable. In this respect he alleges a violation

of Article 6 of the Convention.

THE LAW

The applicant complains about the dismissal by

the Federal Court of his action tending to obtain access to the

medical file concerning his treatment in the psychiatric clinic of the

Free University of Berlin. This complaint is not that the State has

acted but that it failed to act. It therefore has to be examined whether

the handling by the Federal Court of the applicant's request for

access to his clinical record was, as claimed, in breach of a positive

obligation forthcoming from Article 8 (Art. 8) (respect for private life) or

Article 10 (Art. 10) (freedom of information) of the Convention.

The Commission first notes that according to the Federal

Court's jurisprudence a patient has in principle a right to inspect

his/her clinical records insofar as they relate to objectively

justified findings and reports on measures of treatment. It also

notes the view of the Federal Court that in the field of psychiatric

and psychotherapeutic treatment therapeutical reasons may exist to

deny a former patient access to the clinical record even if his/her

conditions have improved. It agrees that account has to be

taken of the fact that the attending practitioner was personnally

involved and that subjective elements of evaluation could play an

important role in the treatment justifiying to leave to them to

decide in the individual case whether to and to what extent the

patient should be granted access to the clinical records.

The Commission further notes that the Federal Court also took

into consideration the applicant's scientific interest which he

grounded on the allegation that he wished to write a dissertation on

his case. The Federal Court weighed this interest against the

interests of other persons involved, namely the attending doctors and

relatives or others who might have given information on the

applicant's mental state. The Federal Court accepted that these

persons had an interest in not being exposed to a possible accusation

based on misinterpretation of the file and that this interest

prevailed over that of the applicant.

In these particular circumstances there is nothing to show

that in dismissing the applicant's claim the Federal Court acted

arbitrarily or otherwise in violation of any Convention rights.

In particular, it did not violate the applicant's right, under

Article 6 para. 1 (Art. 6-1) of the Convention, to a fair hearing that

he was allegedly not invited by the Federal Court to comment on all

points of law which the Court eventually considered to be relevant

(cf. No. 3147/67, Dec. 7.2.68, Collection 27, p. 119 [126]).

It follows that the application must be rejected as being

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

(Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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LEHMANN v. THE FEDERAL REPUBLIC OF GERMANY

LEHMANN v. THE FEDERAL REPUBLIC OF GERMANY

LEXI