Rt 2011 s 1433

Employment and Social Welfare Department v A ( Case No. HR-2011-2072-A)
Download Judgment: English
Country: Norway
Region: Europe
Year: 2011
Court: Supreme Court
Health Topics: Health information, Medical malpractice
Human Rights: Right to privacy
Tags: Confidentiality, Disclosure, Health records, Medical records, Non-disclosure

A doctor was ordered to disclose the medical records of 12 patients, including the plaintiff. The doctor appealed the order to the Labor and Welfare Agency, which rejected the appeal. The plaintiff appealed the same order, but was also rejected since the order was not an “individual decision” making the plaintiff deemed to not be a party to the case and the order not concerning or directly impacting the plaintiff. The plaintiff lodged an appeal to the Appeals Board, but was rejected as the Appeals Board held that the order was not an “individual decision” as it did not impact the rights and obligations of the patients.

The case was soon brought before the ombudsman, which held that the order is an individual decision as it is an exercise of public authority that affected patients’ rights. The plaintiff issued a writ in district court, and the court found in the plaintiff’s favor.. The Labor and Welfare Agency appealed to the Supreme Court, claiming that procedural decisions, like this audit, are not individual decisions and that the patient’s right to privacy is not sufficiently affected to individual decisions.

The Court found in favor of the Labor and Welfare Agency.

The Court held that the order was not an individual decision. An individual decision was an exercise of public authority that had a “decisive” impact on a patient’s rights. Auditing the doctor would result in the discloser of medical records and a “lack of legal certainty for the patient,” but that wasn’t enough of an impact on a patient’s rights. Parliament made a clear distinction between individual and procedural decisions with audits being an express example of a procedural decision.

The Court also held that a patient’s right to privacy and protection against the disclosure of personal information was not absolute. The law expressly stated that a disclosure order can rebut the right of confidentiality. While the Labor and Welfare Agency has a duty to protect confidentiality, it is allowed to provide details to other office employees necessary for the audit.  Parliament intended for a balance between the right to privacy and effective control measures to combat problems like social security fraud.

“The order to disclose the medical records was included as part of an audit into A's physician. The audit aimed to determine whether the doctor had been guilty of malpractice that could provide the basis for professional sanctions against him. The audit could thus result in an individual decision against the doctor and the collection of medical records was a necessary pre-cursor to any such decision. In my view, one is then faced with a procedural decision. A disclosure order relating to an audit may be given at any time which does appear to indicate a lack of legal certainty for the patient involved, however, this fact alone does not mean that the issuing of such a disclosure order represents an individual decision in relation to the patient” (Para 37)

“The patients’ right to protection against the dissemination of personal information is however not absolute and can be overturned under certain circumstances, see the Patients' Rights Act, § 3-6. § 23(6) of the Health Personnel Act provides that this right does not prevent “the disclosure of medical information in accordance with rules established by law or pursuant to law when it is expressly stated or clearly provided that the confidentiality shall not apply.” (Para 44)

“These reviews show that the patient's right to confidentiality does not extend further than those actions required by law. Further, the disclosure of medical records may only occur in so far as is necessary and the information is to be handled by as few individuals as possible in order to minimise the risk of accidental dissemination. This implies, in my view that the disclosure order was not determinative in the sense of §2 Public Administration Act.” (Para 49)

“I also refer to the subject of the matter of the complaint. The NAV requested the disclosure of information which was deemed “necessary” for audit purposes, see the National Insurance Act § 21-4 and the current provision in § 21-4c, second paragraph. NAV is given a wide discretionary power to determine which information must be disclosed for auditing purposes. The patient, however, will have great difficulty in establishing that his/her information is not necessary to the case without access to the other patients' records. Therefore, any appeal rights given to the patient will be of limited use to the overall audit.” (Para 52)