AS TO THE ADMISSIBILITY OF
Application No. 13957/88
by Peter Karl LEHMANN
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 8 November 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 1 August 1986
by Peter karl Lehmann against the Federal Republic of Germany and registered
on 15 June 1988 under file No. 13957/88;
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 is a German citizen, born in 1950 and living in
Berlin. He is represented by Mr. H. Rolshoven, a lawyer in Berlin.
The applicant complains that he was denied access to his
clinical records by the Free University of Berlin and that his
action against the University was dismissed by the Federal Court
(Bundesgerichtshof).
The facts submitted may be summarised as follows:
In April 1977 the applicant voluntarily submitted himself to
treatment in a psychiatric hospital in Baden-Württemberg and from June
to August 1977 in the psychiatric clinic of the Free University in
Berlin. His request to be granted access to his clinical records was
eventually granted by the first institution, not, however, by the Berlin
University. He therefore brought an action and obtained judgments in
his favour in first and second instance. The defendant university
lodged an appeal on points of law (Revision). On 23 November 1982 the
Federal Court (Bundesgerichtshof) quashed the decisions appealed from
and dismissed the action.
While the Federal Court in principle admits that a patient has
a right to inspect his clinical records insofar as they relate to
objectively justified findings and reports on measures of treatment
such as operations and medication, it considers that the situation is
different in the field of psychiatry and psychotherapy. Referring to
its long-standing experience resulting from the handling of similar
matters the Court considered that therapeutical reasons to deny access
may continue to exist even when the patient's condition has improved.
Account had also to be taken of the fact that the attending
practitioner was personally involved and subjective elements of
evaluation could play an important role in the treatment. Therefore
it had to be left to the doctors in question to determine to what extent
the patient should be granted access to the clinical records. The
Court noted that the applicant had had the occasion of informative
talks with the doctors who had treated him.
Insofar as the applicant had motivated his request by stating
that he intended to write a dissertation on his case, the Court pointed
out that his scientific interests had to be weighed against those of
others who also deserved protection. It did not matter that the
applicant's relatives who had given information to the attending
practitioner had not raised any objections to the applicant's
request. The doctors who had to evaluate this information from a
medical point of view could not be expected to have to possibly justify
their conclusions vis-à-vis these persons. Also it might be possible
that the applicant himself misinterpreted his previous situation and
condition and would raise accusations against doctors or informants.
It was therefore in the prevailing interest of these persons that the
information required should not be given.
The applicant's constitutional complaint against the Federal
Court's decision was rejected by a group of three judges of the
Federal Constitutional Court (Bundesverfassungsgericht) on
5 February 1986 as offering no prospects of success.
It is stated in the decision that the Federal Court correctly
weighed the applicant's interests against those of others who also
deserved protection. The finding that the patient's right to
information as part of his right to self-determination and respect of
his personal dignity was limited did not disclose any violation of
constitutional rights. As the Federal Court acknowledged the
applicant's right to be informed about diagnoses and reports
reflecting an objective opinion rather than a subjective evaluation
and pointed out that to this extent information had been given to
him at the occasion of the informative talks with the doctor who
treated him, there was also no violation of the principle of equality.
COMPLAINTS
The applicant considers that the denial of access to the
medical files concerning his treatment violates Articles 8 para. 1
and 10 para. 1 of the Convention.
The applicant further submits he was surprised by the Federal
Court's statements relating to its knowledge of the contents of
medical files in psychiatric matters. The Federal Court should have
given the parties an opportunity to comment on its alleged knowledge.
This would have enabled him to show that, contrary to the Court's
findings, these records contained solely reports based on facts which
are objectively ascertainable. In this respect he alleges a violation
of Article 6 of the Convention.
THE LAW
The applicant complains about the dismissal by
the Federal Court of his action tending to obtain access to the
medical file concerning his treatment in the psychiatric clinic of the
Free University of Berlin. This complaint is not that the State has
acted but that it failed to act. It therefore has to be examined whether
the handling by the Federal Court of the applicant's request for
access to his clinical record was, as claimed, in breach of a positive
obligation forthcoming from Article 8 (Art. 8) (respect for private life) or
Article 10 (Art. 10) (freedom of information) of the Convention.
The Commission first notes that according to the Federal
Court's jurisprudence a patient has in principle a right to inspect
his/her clinical records insofar as they relate to objectively
justified findings and reports on measures of treatment. It also
notes the view of the Federal Court that in the field of psychiatric
and psychotherapeutic treatment therapeutical reasons may exist to
deny a former patient access to the clinical record even if his/her
conditions have improved. It agrees that account has to be
taken of the fact that the attending practitioner was personnally
involved and that subjective elements of evaluation could play an
important role in the treatment justifiying to leave to them to
decide in the individual case whether to and to what extent the
patient should be granted access to the clinical records.
The Commission further notes that the Federal Court also took
into consideration the applicant's scientific interest which he
grounded on the allegation that he wished to write a dissertation on
his case. The Federal Court weighed this interest against the
interests of other persons involved, namely the attending doctors and
relatives or others who might have given information on the
applicant's mental state. The Federal Court accepted that these
persons had an interest in not being exposed to a possible accusation
based on misinterpretation of the file and that this interest
prevailed over that of the applicant.
In these particular circumstances there is nothing to show
that in dismissing the applicant's claim the Federal Court acted
arbitrarily or otherwise in violation of any Convention rights.
In particular, it did not violate the applicant's right, under
Article 6 para. 1 (Art. 6-1) of the Convention, to a fair hearing that
he was allegedly not invited by the Federal Court to comment on all
points of law which the Court eventually considered to be relevant
(cf. No. 3147/67, Dec. 7.2.68, Collection 27, p. 119 [126]).
It follows that the application must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy