Lexploria

The European Commission of Human Rights sitting in private on

1 December 1986 the following members being present:

MM. C.A. NØRGAARD, President

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs G.H. THUNE

Sir Basil HALL

Mr F. MARTINEZ

Mr J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 (art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 October 1984 by

J.G. against the United Kingdom and registered on 23 October 1985

under file No. 11820/85;

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, a United Kingdom citizen, was born in 1938 and lives in

and works as a teacher employed by a local education authority (an

L.E.A.) in South West England.

The facts, as submitted by the parties, may be summarised as follows:

The applicant has worked as a teacher for her L.E.A. since 1967. When

first employed, she was medically examined and given to understand

that any query as to her health would be referred to an independent

doctor.

As a result of a change in procedures for certification of sick notes

(notes for employers to confirm an employee's absence from work

through illness), a circular was distributed in September 1982 by the

applicant's employer. The circular, which was sent to all L.E.A.

employees, provided as follows:

" ...

In short employees must:-

First day of absence: Report to supervising officer by

telephone*

Fourth day of absence: Report to supervising officer by

telephone* (Complete DHSS claim

form if claiming benefit and

forward direct to DHSS).

---------------

* Or by quickest possible means if a telephone is unavailable.

_______________

Absences of eight days

or more Produce to supervising officer

medical certificate from doctor/

hospital on eighth day and

further certificates if

necessary to cover full period

of absence subsequent to first

seven days.

On Return to Work Complete and sign Employee

after an absence of Statement for the full

four days or more period of absence.

Employees are to note that;-

(i) The Authority reserves the right to review an

employee's suitability on health grounds for

specific job requirements and/or investigate

the reason for absence stated on the Employee

Statement form or medical certificate. This

may involve referral to the Occupational

Health Physician for a medical report and/or

consultation with the employee's own doctor

or any doctor attending him/her.

(ii) Disciplinary action in accordance with the

existing disciplinary procedures will be taken

against employees who knowlingly make false

declarations on the Employee Statement Form

or fail to comply with the procedure.

..."

The circular was confirmed, with specific reference to teachers, by a

letter from the L.E.A. Director of Education in November 1982.

The applicant claims that as a result of the new policy, her medical

record, a private confidential record between her and her doctor, can

now be disclosed to her employer without her consent or, indeed, her

knowledge.

A teacher's failure to agree to the disclosure of medical records

could allegedly lead to disciplinary sanctions.

On 30 May 1986, pursuant to Rule 40 para. 1 of the Commission's Rules

of Procedure, the Government informed the Commission as follows:

Teachers are employed by L.E.A.s and conditions of service are

negotiated nationally between associations of L.E.A.s and the

teachers' unions. Central Government is not involved. L.E.A.s are

not statutorily bound to accept the agreements reached after such

negotiations, but by custom they are expected to incorporate them in

their contracts of service with individual teachers. The Circular of

September 1982 from the applicant's employer/L.E.A. resulted from one

of such agreements. The extent to which, and the manner in which, any

employer may unilaterally amend the terms of a contract of service

will depend upon the terms of the original contract. In the

applicant's case there was no express term enabling the authority to

amend their contract with her. Teachers benefit from normal

employment protection law, in particular the law relating to written

contracts of employment (Sections 1 and 4 of the Employment Protection

(Consolidation) Act 1978).

Both hospital medical records and those of general medical

practitioners are deemed, in law, to be owned by the Secretary of

State for Health and Social Security. However, regardless of the

strict legal position on ownership of records, disclosure of medical

records is normally left to professional medical ethics. According to

the doctors' code of professional conduct, "It is a doctor's duty ....

strictly to observe the rule of professional secrecy by refraining

from disclosing voluntarily to any third party information about a

patient which he has learnt directly or indirectly in his professional

capacity as a registered medical practitioner."

The relationship of confidentiality between doctor and patient is

respected in practice and medical records may only be disclosed in

exceptional circumstances: by virtue of a statutory requirement or a

decision of a court of law, for essential management functions of the

health authority, health research and the prevention, detection and

prosecution of crime, or in the interests of national security or

public health.

As far as it has been possible to ascertain, there are no statutory

provisions requiring medical records to be sent to local authority

employers. This would only occur if the patient authorised

disclosure. In the absence of such statutory provision, any term in

the contract between a teacher and his employer requiring disclosure

would be unenforceable against doctors and the health authorities.

There does not appear to be any provision of social security

legislation giving employers the right of access to medical records.

For statutory sick pay purposes an employer may require production of

a medical certificate, but that is all. In the wider sphere the

Department of Health and Social Security often obtains medical

reports, extracts from hospital case notes, etc., for the purpose of

determining claims to benefit, but only with the claimant's consent.

Even if an L.E.A. does request information of a doctor without consent

and/or knowledge of the patient, the information in the hands of the

doctor will be subject to the aforementioned rule of confidentiality

and will not be disclosed without the patient's consent. If the

doctor declines to provide it, the Secretary of State presumably could

do so on the basis of his ownership of records. He could direct

health authorities under Section 17 of the National Health Service Act

1977 to make records available, but it seems, in view of what has been

said above, that such a possibility is so unlikely as to be not worthy

of consideration. The Education (Teachers) Regulations (SI 1982/106)

contain provisions governing the employment of teachers and, in

particular, provide that teachers shall not continue in relevant

employment unless they have the health or physical capacity therefor

(Regulation 9). The Regulations set out the procedure to be followed

where it appears to the authority that the teacher may no longer have

the necessary health and physical capacity, but there is nothing in

the Regulations that requires doctors to disclose information, or

which would otherwise create a conflict for the doctor with the duty

of confidentiality outlined above. Again information will only be

given where the patient consents.

As regards the applicant's own situation, no information contained in

the applicant's medical records, held by her general practitioner, has

been submitted to her employer. In fact the only communications about

her health that the education department had, apart from her own

doctor's sickness certificates, were provided by her. Enquiries have

not been made of the employer's occupational health doctor as to

whether he has been given information about the applicant by her

doctor, but -

i. the practice in the applicant's L.E.A. is that such

information would not be given without the patient's

consent, and

ii. in fact no such information was passed by the occupational

health doctor to the authority.

In response to this information, the applicant maintains her claim

that her employer may still have access to her medical records. Even

if, in practice, because of medical ethics, records are not normally

disclosed, the L.E.A.'s right of access remains.

COMPLAINTS

The applicant complains that the right of local education authorities

to have access to their teacher/employees' medical records (under

threat of disciplinary actions) constitutes a breach of Article 8

(art. 8) of the Convention. She objects to this right of access being

imposed upon her as a unilateral change in her contract, whereas she

was originally employed on the understanding that medical queries

would be referred to an independent doctor. This change in her

contract (which she considers to be a change in the law) undermines

the relationship of confidentiality she has with her general medical

practitioner. Although some parents may approve of such interference

with teachers' records, it is a dangerous precedent and threat to

other professions in positions of trust, or caring for others. The

present situation goes beyond what is necessary to secure other

people's well-being at the expense of teachers' individual liberty.

THE LAW

The applicant complains of a unilateral change in her contract of

employment as a teacher which, she claims, gives her employer, a local

education authority, a right of access to her private medical records,

held by her general medical practitioner. She alleges that this right

of access is enforced by the possibility of imposing disciplinary

sanctions against her, should she oppose it. The applicant thereby

claims to be a victim of a violation of Article 8 (art. 8) of the

Convention which ensures the right to respect for private and family

life, home and correspondence, subject to certain limited exceptions.

However, the Commission is not required to decide whether or not the

facts alleged by the applicant disclose any appearance of a violation

of this provision as, under Article 26 (art. 26) of the Convention, it

may only deal with a matter after all domestic remedies have been

exhausted according to the generally recognised rules of international

law.

In the present case the Commission notes that the applicant is

protected by the general principles of employment and contract law and

that there is nothing in her contract of service with her employer

permitting a unilateral change in her conditions of service. Thus any

changes in the terms of her contract of employment must be agreed

between the parties or effected by the termination of the old contract

and agreement on a new one. The applicant has not instituted

proceedings for an injunction or a declaration, with a claim for

breach of contract, concerning the possible change in the conditions

of her service imposed without her consent, or concerning any concrete

dispute over her employer's access to her private medical records

(cf. Keir and Williams v. the County Council of Hereford and Worcester

(1985 I.R.L.R. 505 C.A.)).

In these circumstances the Commission finds that the applicant has not

exhausted the remedies available to her under English law. Moreover,

an examination of the case does not disclose the existence of any

special circumstances which might absolve the applicant, according to

the generally recognised rules of international law, from exhausting

the domestic remedies at her disposal.

It follows that the applicant has not complied with the condition as

to the exhaustion of domestic remedies and her application must in

this respect be rejected under Articles 26 and 27 para. 3

(art. 26, art. 27-3) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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G. v. THE UNITED KINGDOM

G. v. THE UNITED KINGDOM

LEXI