CONCURRING OPINION OF JUDGE POWER

I voted for a finding of no violation of Articles 8 or 10 of the Convention but I would like to add some additional remarks to the reasoning of the majority. Relying on his promise of confidentiality given to research participants, the applicant obstructed, intentionally, the University of Gothenburg from complying with a Court Order for disclosure of documents under restricted conditions. The documents, which related to a research project conducted from 1977 to 1992 were subsequently destroyed thus frustrating compliance with a lawful Court Order.

The documentation in question had been sought by third party researchers who had established, before the domestic courts, a legitimate interest in having certain access to the material. According to the Judgment of the domestic court, their interest did not relate to the personal data of the research subjects, as such, but only to “ the methods used in the research and the evidence the researchers had for their conclusions ”. It was “ important to the neuropsychiatric debate that the material in question could be exposed to independent and critical examination ” [1] . The public has an obvious interest in the findings and implications of research. Progress in scientific knowledge would be hampered unduly if the methods and evidence used in research were not open to scrutiny, discussion and debate. Thus, the requests for access, in my view, represented important matters of public interest.

The public also has an interest in protecting the confidentiality that attaches to the doctor-patient and other kinds of fiduciary relationship, including the one that arose in this case. The purpose of the duty of confidence is to support the development of fiduciary and other special relationships that involve an element of reliance or trust between persons for the social and personal benefits they provide. It is important to note, however, that the applicant was not the children ’ s treating doctor but acted, rather, in his capacity as Director of Research.

The Administrative Court of Appeal was thus faced with two competing public interests. In balancing those interests, it listened to the arguments against disclosure submitted by the University of Gothenburg (in which, it would appear, ownership of the records vested, the research not being the private research of the applicant) and it heard the submissions of the third party researchers who wanted to test the reliability of that University ’ s research findings. In reaching its decision, it balanced the competing interests and imposed rather stringent and restrictive conditions prior to the making of the Order for disclosure. During the course of the dispute it directed the matter back to the University to examine whether the material

could be released “ after the removal of identifying information [2] – a condition which, to my mind, appeared entirely appropriate and which would indicate that the applicant ’ s concerns regarding confidentiality had been considered, at least in substance, by the domestic courts [3] . Further conditions also attached to the Order granting access, the breach of which gave rise to criminal liability on the part of those to whom access had been granted. Notwithstanding the existence of such safeguards, the applicant nevertheless persisted in his opposition to the release of the documentation insisting upon the binding nature of his promise of confidentiality to the research participants.

Part of the applicant ’ s difficulty seems to lie in his perception of the legal boundaries of a doctor ’ s duty of confidence. It seems to me that, as a general principle, once a doctor is required to give evidence or, by order of the court, to disclose confidential notes concerning a patient ’ s treatment, no privilege exists which would entitle the patient to prevent disclosure of the relevant information. The corollary is, of course, that in the absence of a court order or of patient consent, medical records cannot be released by a doctor to third parties [4] . The fact is that in this case the records that related to the research participants (who were not the applicant ’ s “patients”) were the subject of a court order.

The applicant complains, essentially, that he had to choose between breaking the law or breaking a promise of confidentiality (which he was obliged both by his profession and by the state, to make). He chose to break the law even though a court of law had previously considered the confidential nature of the records in question in its balancing of the interests involved and had imposed strict conditions attaching to disclosure. The applicant was thus protected by law and I do not accept that in complying with a court order his future career as a doctor would have been destroyed [5] .

Confidentiality in medical research relationships, although an important matter of public interest and meriting the law ’ s protection, cannot be said to be absolute. There may be times when a person owing a duty of confidence is obliged to disclose information that was given “in confidence” as, for example, where disclosure is necessary to prevent a risk of foreseeable harm to a patient or to a third party or where it is made on foot of a court order. Thus, at the outset of any clinical research project or other “confidential” therapeutic relationship, the legal boundaries within which the duty of confidence arises ought to be clearly established.

If what appears to be the applicant ’ s perception of the binding nature of his promise of confidentiality were correct, then courts could rarely, if ever, order disclosure of “confidential” records even where the protection of other important interests were in issue. Yet case law from various jurisdictions indicates that applications for disclosure of “confidential” records are frequently brought before the courts [6] and it is not unusual for courts to engage in a balancing exercise of the competing interests involved.

No medical practitioner or academic researcher, no matter how committed to the principle of confidentiality, is permitted to act outside the law. Respect for the rule of law upon which the foundations of democracy rest requires respect for lawful Court orders. The applicant was not entitled to do what he did and his conviction with a suspended sentence was not, in my view, disproportionate having regard to all the circumstances of the case.