CEDH · CASELAW;CLIN;ENG — 27 mars 2012

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France (dec.) - 20041/10 Decision 27.3.2012 [Section V] Article 6 Civil proceedings Article 6-1 Civil rights and obligations Fair hearing Adversarial trial Equality of arms Non-disclosure to employer of medical documents establishing occupational nature of employee’s disease: inadmissible   Facts – In December 2005 the Health Insurance Office forwarded an occupational disease declaration to the applicant company, together with other documents sent in by one of the company’s former blue-collar employees. The Health Insurance Office subsequently informed the applicant company that the former employee’s file had been examined and the company had twenty-one days to consult it. The Office sent the company the different documents in the file, including the consulting doctor’s opinion that the disease was occupation-related. In February 2006 the Health Insurance Office notified the applicant company of its decision to acknowledge the occupational origin of the former employee’s condition. The applicant company appealed to the social-security tribunal, complaining that the adversarial principle had not been respected as the Health Insurance Office had failed to produce the medical information on which the consulting doctor had based his opinion. In 2008 the court of appeal set aside the first-instance judgment in favour of the applicant company and upheld the decision of the Health Insurance Office to cover the former employee’s disease. The applicant company appealed on points of law, but the appeal was dismissed. Law – Article 6 § 1 (a)     Applicability – The civil limb of Article 6 §   1 of the Convention was applicable where an employer challenged the decision that a disease was occupation-related, because of the private-law aspects of the social-security system in matters related to industrial accidents and diseases. The relationship between an employer and the Health Insurance Office was comparable in many respects to that between the insured and the insurer: the employer paid contributions to the Health Insurance Office, which covered industrial accidents and diseases and charged the employer a premium that reflected in part the number of industrial accidents and diseases reported in the company concerned. (b)     Fairness – An expert medical opinion, in so far as it pertained to a technical field that was outside the judges’ field of knowledge, was likely to have influenced their assessment of the facts and convinced them of the occupational origin of the disease. However, the failure to give the employer access to the employee’s medical records and the observations of the consulting doctor was explained by the medical confidentiality required of the doctor. True, the right to medical confidentiality was not absolute, but it had to be taken into account, as did the applicant company’s right to an adversarial procedure, and this had to be done in such a way that neither right was impaired in its very essence. This balance was achieved where an employer challenging the occupational nature of a disease could ask the court to appoint an independent medical expert who could review the employee’s medical records and draw up a report – respecting the confidentiality of the medical records – to guide the court and the parties. The procedure by which the Health Insurance Office reached a decision as regards the industrial nature of an employee’s disease or accident generally obeyed the adversarial principle and the obligation to inform the employer, as provided for in French law and guaranteed by the social-security tribunals. The possibility for the employer to have access, via a medical expert, to an employee’s medical records guaranteed an adversarial procedure without impairing the employee’s right to medical confidentiality. The fact that an expert report was not commissioned every time an employer requested one, but only when the court considered it had insufficient information, met the requirements of a fair trial under Article 6 §   1 of the Convention. It was not the Court’s role to say whether an expert opinion should have been sought in the present case, but rather to determine whether the proceedings as a whole, including the presentation of the evidence, had been fair. The Health Insurance Office had reached its decision based solely on the opinion of its consulting doctor. That doctor, however, was not under the direct authority of the Health Insurance Office concerned but under that of the National Health Insurance Fund for Salaried Employees. This applied both to the independent status of the doctor vis-à-vis the administrative services of the Health Insurance Office and to the duty of confidentiality by which he was bound. That being so, the administrative services of the Health Insurance Office had not had access to the medical records requested by the applicant company either, so the Health Insurance Office had not been given a clear advantage over the applicant company in the proceedings. Conclusion : inadmissible (manifestly ill-founded).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes