DISSENTING OPINION OF JUDGE S PINTO DE ALBUQUERQUE AND KELLER

1. To our regret, we are unable to follow the opinion of the majority. We think that there has been a breach of Article 8, owing to the illegitimate disclosure of confidential medical information by the director of the Children ’ s Welfare Service (CWS). We will explain our opinion by describing the applicable convention norms and principles and by assessing the facts in the light of these principles.

2. In short, the facts are the following: the applicant complained publicly about the way the CWS had acted during her son ’ s custody proceedings and about the professional qualifications of CWS employees. She did so by means of two articles in the national press and an interview on national television. Reacting to that criticism, the director of the service in question gave an interview to a national newspaper referring to the case pending before a court of a “divorced” mother of a “thirteen-year-old teenager”, who had given an interview for a television programme and had used “slander” with regard to the CWS. The director of the service also cited the child ’ s medical record, sometimes even quoting the medical conclusions directly (for example, “The psychiatrists ’ conclusion states that at present it is best for the boy to ... The psychiatrists ’ conclusion states that the boy is ... According to the doctor, his real father asks too much of the boy ... The mother suspected that the boy could be sexually abused. After the doctors examined the boy, no signs of abuse were discovered. The psychiatrists ’ conclusion also states that ... The mother told the doctors that ... .”).

3. Article 8 of the Convention protects the confidentiality of medical data as a fundamental part of the intimacy of a human being (see the leading judgments of the Court in the cases of Z v. Finland , 25 February 1997, Reports of Judgments and Decisions 1997 - I , and M. S. v. Sweden , 27 August 1997, Reports of Judgments and Decisions 1997 - IV , and also the fundamental ECJ judgment of 5 October 1994, X. v. Commission ). T he doctor -patient privilege applies to any information shared between doctor and patient or accessed by the doctor in respect of the patient during the course of medical care. This principle prevents doctors and other health professionals from revealing the content of conversations, exam ination s, medical records and any medical data related to patients , including psychiatric information (see Panteleyenko v. Ukraine , no. 11901/02, 29 June 2006 ). The bond of trust between the health professional and the patient built upon this principle is of paramount importance both for the diagnostic process, which relies on the assessment of an accurate history of the illness, but also subsequently for the treatment phase, which often depends as much on the patient ’ s trust in the health professional as it does on medication and surgery. This is a non-negotiable tenet of medical practice, although exceptions to this principle have been carved out over the centuries, such as where a patient threatens himself or herself or a third person with bodily harm .

Article 8 only admits the disclosure of confidential medical data in exceptional cases, either on the basis of free and informed consent of the patient or of a decision taken by the legally competent authority , when such a decision is proportionate and necessary in a democratic society in order to pursue one of the aims foreseen in its second paragraph ( compare Z v. Finland , cited above, §§ 96-109, and contrast Panteleyenko , cited above , §§ 54-62, where the Court found inadmissible an unnecessary disclosure at a court hearing of confidential information regarding the applicant ’ s mental state and psychiatric treatment).

A patient ’ s consent to disclosure of confidential information may also be implied from the circumstances . For example, health professionals directly involved in a patient ’ s treatment generally have access to medical data . Even if the patient has not expressly authori s ed disclosure of his or her medical data , such consent is implied from the patient ’ s acceptance of treatment. Consent is also implied when a patient is transferred from one health professional or health facility to another or even to another public institution, such as the Social Security office ( see M.S. v. Sweden , cited above, § 42, where the Court found no violation when the medical data had been communicated by one public institution to another in the context of an assessment of whether the applicant satisfied the legal conditions for obtaining social-security benefit which she herself had requested) .

The fact that the patient voluntarily discloses to the general public some confidential information does not release health professionals from the duty of confidentiality. In cases where the patient discloses to the general public a specific item of confidential information, t he health professional may only confirm or refute th at information which has been made public by the patient . The confidentiality of medical data should be preserved until it no longer constitutes an overriding interest (see Editions Plon v. France , no. 58148/00, § 53, ECHR 2004 ‑ IV where the Court found that the protection of a medical secret was no longer justified since not only had some 40,000 copies of the book revealing medical secrets of former President Mitterrand already been sold, but it had also been disseminated on the Internet and had been the subject of considerable media comment) . There is therefore no implicit forfeiture of the right to confidentiality of medical data when “almost all”, but not all, the disputed information concerning the applicant ’ s private life and her son ’ s health had already been disseminated in the public domain, as the majority seem to conclude (see paragraph 48 of the judgment).

The defence of the professional honour and reputation of a health professional may justify a breach of confidentiality of medical data. If the health prof essional ’ s conduct is under the scrutiny of a civil or criminal court , that professional may disclose medical data which is absolutely necessary to defend his or her conduc t. General criticism of a health service does not justify the disclosure of confidential medical data.

4. In the light of these principles, the facts of the case show clearly that the director of the CWS did not act professionally. His behaviour seems rather to constitute an excessive reaction, providing a one-sided and distorted account of a real and identifiable case without giving due account to the autonomous interest of the child ’ s welfare.

In fact, the protagonists of the case mentioned by the director of the CWS were perfectly identifiable, not only by the individuals involved personally in the case (the applicant, her son, the father of the child and former husband of the applicant and the applicant ’ s new companion), but also by those professionally involved in the case (such as the doctors and psychiatrists who provided care to the child) and, even worse, by the general public. Any common citizen could easily identify the persons to whom the director of the CWS referred in the article of 15 June 2001, owing to the proximity in time of the newspaper articles and television interview of the applicant and the newspaper interview of the director of the CWS, who even specifically mentioned the applicant ’ s television interview to which he was reacting. The conclusion of the Inspector of Journalistic Ethics, that “the applicant was recognisable”, is thus correct.

5. The gravity of the breach of the duty of confidentiality by the director of the CWS is compounded by three relevant facts. Firstly, the director of the CWS disclosed more information than that revealed by the applicant, and this information was particularly sensitive and damaging for the persons involved. In fact, the director of the CWS did not refrain from exposing to the general public a suspicion of sexual abuse of the child and even the results of the medical examinations performed in order to confirm that suspicion. He also referred to a supposed aggression of the child by the applicant, who had allegedly on one occasion pulled the child by his hair and bit him, as well as the explanation given by the mother to the doctors. These facts were never referred to by the mother in her press articles or television interview.

Secondly, the breach of the duty of confidentiality is aggravated by the fact that the interview given by the director of the CWS portrayed the applicant as a selfish and unstable person, in “need of psychological help”, who did not care for the welfare of her child and was even violent towards him. Here again, the conclusion of the Inspector of Journalistic Ethics, that the applicant ’ s “actions and life c hoices were described one-sided ly, seeking to create a negative image”, is in our view pertinent. If the director of the CWS intended to defend the reputation of his service and its health professionals from the alleged “slander” committed by the applicant, he chose the wrong way of doing it, by breaching his duty of confidentiality and denigrating the applicant in public. Besides, the applicant ’ s criticism of the services was not found to be in breach of the law, since no criminal or civil action was initiated by the CWS against the applicant. In fact, the Children ’ s Rights Ombudsman even concluded that “the CWS employees did not take all the steps to protect the boy ’ s interests”, thus giving credit to the applicant ’ s criticism of the CWS.

Thirdly, the breach of the duty of confidentiality is obviously exacerbated by the intensity of the media coverage of the whole story. This coverage enhanced the negative impact of the words of the director of the CWS, and he was aware of this and took advantage of it in order to maximise that impact. Such behaviour is, to say the least, unprofessional.

6. The unethical way in which the director of the CWS acted was clearly perceived by the national authorities and even by the newspaper itself. The newspaper ’ s apology on 18 June 2001, although acknowledging the unethical character of the article and interview published on 15 June 2001, came too late and did not repair the tremendous damage already caused to the applicant and her son by the allegations of the director of the CWS. The same applies to the acknowledgment by the Vilnius Child Development Centre on 4 September 2001 that the director of the CWS had acted unethically in disclosing the applicant ’ s son medical records.

Although the Supreme Court did explicitly disapprove of the conduct of the director of the CWS, no justice was done to the applicant or her son. While rightly reprimanding the director of the CWS in a separate ruling because “there was no ground warranting the publication of the information, nor was there a legitimate interest in society being informed thereof”, the Supreme Court in a contradictory decision dismissed the applicant ’ s cassation appeal with the unfounded argument that the applicant was not recognisable. By doing so, the Supreme Court did not take due account of the applicant ’ s right to privacy and the autonomous interest of the child.

7. These are the reasons for which we conclude that there was an unauthorised and disproportionate interference with the applicant ’ s right to privacy and ther efore a violation of Article 8.