CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 décembre 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  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)