The patient’s right to access to psychiatric records: doctrine and jurisprudence

Размещено на http://www.allbest.ru/

The patient's right to access to psychiatric records: doctrine and jurisprudence

Anatoliy Lytvynenko, Doctoral student of Baltic International Academy (Riga, Latvia), Ph.D. student of Ivan Franko National University of Lviv (Lviv, Ukraine); MRes/PhD student at the Department of Law at Robert Gordon University of Aberdeen (Aberdeen, Scotland)*

Резюме

Литвиненко А.А. Доступ до психіатричної документації пацієнтів: доктрина та правозастосовна практика.

Доступ до медичної документації вважається одним із фундаментальних прав пацієнта. Не зважаючи на те, що медичне право є відносно «молодим», юриспруденція країн світу містить численні приклади справ щодо витребування медичної документації протягом останнього століття, хоча саме явище набуло розмаху лише в останні пару десятиліть. Мета доступу до медичної документації може суттєво відрізнятися - від підготовки заінтересованою особою позову щодо недбалості медичного працівника до оскарження дійсності заповіту, розлучення та інших приватних цілей. Хоча уся медична документація розцінюється, як т.зв. «чутливі дані», інформація стосовно лікування, діагнозу і прогноз на майбутнє психіатричного пацієнта, як правило, вважається ще більш «чутливою». Однак, при цьому, психіатрична документація аж ніяк не є недоступною для перегляду самими пацієнтами. Дійсно, режим доступу до них є більш обмеженим, аніж до звичайної медичної документації, однак законодавство багатьох держав не має конкретних приписів стосовно різниці між вказаними типами документації, або й доступу до них, як такого, залишаючи це на розгляд судів. Причини для того, аби отримати доступ до психіатричної документації можуть суттєво відрізнятися від причин доступу до звичайної медичної документації, тому лікарні переважно вкрай неохоче надають його, вважаючи, що це сприятиме погіршенню здоров'я пацієнта, або «перезапустить» його задавнені захворювання. Нинішня правова позиція судів полягає в тому, аби дозволяти доступ до такої документації, однак враховуючи необхідні застереження, а саме: власне обмежений обсяг доступу, конкретизація необхідності в доступі позивачем, або перегляд документації в присутності лікарів. Право на доступ до психіатричної документації також може включати й складніші аспекти, а саме, використання психіатричної документації неповнолітніх, чи клопотання в суд щодо знищення психіатричної документації за аналогією з даними стосовно судимості. Цивільні чи адміністративні позови стосовно доступу до психіатричної документації є доволі рідкісними; відповідно, суди виносять рішення, виходячи з обставин кожної конкретної справи, та беручи до уваги стан фізичного та психічного здоров'я пацієнта-позивача, а також обґрунтування позивача в необхідності доступу до його психіатричної документації. medical documentation bedbug poses

Ключові слова: медична таємниця, доступ до медичної документації, психіатрична документація, захист персональних даних.

Резюме

Литвиненко А.А. Доступ к психиатрической документации пациентов: доктрина и правоприменительная практика.

Доступ к медицинской документации считается одним из фундаментальных прав пациента. Несмотря на то, что медицинское право является достаточно «молодым», юриспруденция стран мира располагает множеством примеров судебных дел касательно истребования медицинской документации на протяжении последнего века, хотя данное явление участилось лишь в последние пару десятилетий. Цель получения доступа к медицинской документации может существенно отличаться - от подготовки заинтересованным лицом иска по поводу небрежности медицинского работника до обжалования действительности завещания, использования в бракоразводном процессе и других частных целей. Хотя вся медицинская документация сейчас расценивается, как т.зв. «чувствительные данные», информация касательно лечения, диагноза и прогноза на будущее у психиатрического пациента, считается еще более еще более «чувствительной». При этом, психиатрическая документация вовсе не является недоступной для просмотра самими пациентами. Действительно, режим доступа к ней является более ограниченным, чем к обычной медицинской документации, однако законодательство многих государств не имеет конкретных норм касательно разницы между указанными типами документации, или же доступа к ним, как такового, оставляя это на усмотрение суда.

Ключевые слова: медицинская тайна, доступ к медицинской документации, психиатрическая документация, защита персональных данных. medical documentation bedbug poses

Summary

Anatoliy Lytvynenko. The patient's right to access to psychiatric records: doctrine and jurisprudence.

Access to medical records is one of the fundamental rights of the patients. Despite medical law is relatively young, the worldwide jurisprudence has witnessed actions for medical records production for already a century, despite it has been widely known for a couple of decades. The purposes for an insight into medical data may be different - from preparing medical malpractice actions to challenging a testament, divorce proceedings and various private needs. Though all the medical records are deemed as sensitive data, the records concerning a patient's psychiatric treatment, diagnosis and prognosis are considered even more highly confidential. However, psychiatric records are not bound to be inspected by patients. The regime of access is mostly more strict than of ordinary medical records, but the legislation of many states is silent towards the distinction between these records and the possibility of insight to them, remaining this issue for the courts to decide. The purposes for access to psychiatric records may considerably vary from insight into ordinary medical records and the hospitals are frequently reluctant to produce them finding it could endanger the health of an ex-patient, or resurrect his old ailments. The current position of the courts is for allowing the production of such records though not disregarding the necessary precautions: some courts found that the insight must be limited, justified by the plaintiff and the records should be inspected in the presence of physicians. The right to access to psychiatric records may also arise more complexified aspects, such as use of minor psychiatric records, or a plea to expunge psychiatric records in an analogy with criminal records. Civil or administrative proceedings in respect with access to psychiatric records are relatively rare and the courts often substantiate their judgments upon the trial facts, taking into account the health and mental condition of the patient as well as his justification to inspect such records.

Key words: medical confidentiality, access to medical records, psychiatric records, data protection

It is also true that the acting legislation of some countries may allow controlling authorities to examine specific medical records kept by physicians and hospitals, and medical confidentiality legislation (or, at least the principles elaborated in case-law) does not preclude it from being produced for such inspection¹². In such countries, as Sweden, where county authorities allow inspection of digitized medical records by the representatives of a patient, the data protection inspectorates used to litigate to enjoin the county authorities from such practices, though with no success¹³. It has to be also augmented, that the obligation of physicians to provide hospital records to inspection boards for insight is strictly with accordance with the legislation and the said boards do not acquire any property rights in the medical records according to the Swedish jurisprudence¹⁴.

Medical records (frequently referred to as “hospital records”, “information concerning [the patient's] state of health”¹⁵, “clinical records” or “clinical history”¹⁶) as argued by several scholars, are a set of personal records containing the patient's data, the evaluation and information of any kind concerning the current state of health and the clinical evolution of a certain patient within the healthcare process¹⁷. The courts in Germany referred to medical records as personal records describing the patient's state of health as well as the prognosis for the future¹⁸. Psychiatric records (alternatively referred to as “mental health records”, and retrospectively “(insane) asylum records”¹⁹) are medical records, which display mental health of the patient, information concerning his treatment and frequently the prognosis of his future. However, inspection of such records is a more complicated issue: as Weil (1993) denotes, the insight into psychiatric records involves certain risks of harming the patient's health, especially if the person tends to be paranoic or hypohondric or the physician's notes contain a certain amount of highly embarrassing or evaluative information concerning the psychiatric patient²⁰. The courts in Germany came to the same conclusion, despite stating that psychiatric records are not generally exempt from inspection²¹; in fact, the court may found its judgment whether let or not let a psychiatric patient to inspect his personal records upon his behavior²² and upon his justification for it²³, or his actual health condition and the possibility of its worsening in case he inspects the said psychiatric records²⁴. Upon my brief investigation on insight to psychiatric records in German case law, I assume to conclude that German courts tend to find that the fact the medical records being requested by plaintiff are psychiatric ones, does not make them completely exempt from the patient's insight. But their amount is mostly reduced to objective findings, they have to be inspected in the presence of healthcare professionals and the patient's insight (e.g. a need to commence a malpractice action) has to be justified²⁵, although German courts held that there is no need for the plaintiff to demonstrate a legal interest for inspection of medical records under ordinary conditions²⁶ - psychiatric records definitely will not fall under such conception²⁷.

The reduction of inspection to objective findings in medical records somehow corresponds with the “dual system of medical records” as suggested by Dr. Alan F. Westin (1977), an outstanding data protection pioneer of the 1970s²⁸. Concerning records on psychiatric treatment, German courts give certain discretion to the hospital physicians to decide whether to grant access to psychiatric records, or not, but even psychiatric detainees are, in fact, not exempt from the right to inspect their respective medical records as such. The same is applied to their counsels - they cannot be refused to inspect client's psychiatric records just on basis of medical concerns - the opposing reasons for such refusal should be well justified though not going into much detail²⁹. With so many examples in case law, nothing indicates that the decision of boards not to grant the psychiatric [ex-] patients insight into their medical record, may not be impugned in court order. As the mid-20^th century German jurisprudence shows, the appropriate justification of insight into psychiatric records may serve well even for a long-term prison detainee³⁰.

The distinction between ordinary medical records and psychiatric records is clearly distinguished in both law and academic literature. For instance, R. Showalter (1985), one of the pioneers of psychiatric record-keeping issues claimed, that the psychiatric records are qualitatively different from ordinary ones owing to a diffuse symptoms of psychiatric patients, making such personal records more “vulnerable” (using his wording) to subjective evaluation and would cause divergences between evaluative judgments of treating physicians³¹. Some authors also assumed that such records have very limited inspection possibility (if any at all) owing to a substantially sensitive nature of treatment of psychiatric maladies³². The distinction is also virtual under the law: for instance, when various US legislatures commenced enacting the statutes on access to medical records in the late-to-mid 1970s, psychiatric records were banned from inspection from one hand, and from the other, as Nokes (1978) denotes, had less privacy protection from third parties authorized to inspect them³³. Somehow or other, but if speaking about earlier US jurisprudence concerning if the plaintiff could inspect hospital records in custody of a mental clinics, even statutes banned it from inspection unless a court order³⁴.

Purposes for insight: medical records and psychiatric records

In my recent papers, I have outlined a number of purposes for which patients desire to inspect their medical records. In a large number of cases, these records are requested as evidence for medical malpractice suits, though there is around a dozen of other purposes, such as divorce proceedings, discovery of the cause of one's demise, recovery of an insurance policy, challenging a will and many others³⁵. The insight to psychiatric records could bear the same purposes, but both academicians and court jurisprudence show they may vary. In this section, I will give examples of academic views concerning the purposes of insight into psychiatric records, and subsequently present a table of several illustrative court decisions, which will display the plaintiffs' justifications for the inspection of psychiatric records. Besides, occasionally plaintiff may not be obliged to substantiate his claim in order to be granted access even to his psychiatric records. For instance, a Ukrainian court has recently upheld plaintiff's claim to insight into asylum records despite he had not stated any actual reasons for it, merely claiming he the access to his psychiatric records is his legitimate interest³⁶.

Showalter (1985) determined nine reasons for accessing psychiatric records by psychiatric patients. Let us reckon them up³⁷:

1) A wish to understand the malady better (if we reckon up the Decision of the Federal Supreme Court of Germany of 1984, plaintiff desired to investigate on the reasons for which he was confined and treated in a mental asylum nearly twenty years priorly to this action, believing he was placed to the psychiatric hospital in the course of a criminal investigation, unknown to plaintiff³⁸);

2) A belief that the hospital personnel has not disclosed all facts and opinions which are contained in the actual psychiatric record. A good example of this statement, though not stringently connected with psychiatric records, is the judgment of M. G. v. United Kingdom (2002), adjudicated by the European Court of Human Rights: there, a man desired to inspect his archival records of his youth, when he was in custody of municipal childcare institutions, as well as being temporarily fostered. Despite he was let to inspect a number of his archival records, he was sure he had not been shown the full amount of them. Taking into account that all his personal records were brought to the Court (meaning the European Court), where the Court inferred that the amount of the records disclosed and their actual amount considerably differed, plaintiff was definitely not mistaken to having believed that he was not disclosed all the records, despite the plaintiff had been previously assured by defendant authorities, that he had been supplied with all the existing entries³⁹. In the 1988 ruling of the German Supreme Federal Court, an ex-psychiatric patient desired to inquire what the physicians' thoughts concerning him existed⁴⁰.

3) Patient's need (or I suppose belief) in maintaining and preserving “a sense of control” in patient-physician relationship. In the late 70s, German land courts held that the inspection of medical-records derives from the covenant of the physician (hospital) and the patient for healthcare⁴¹, as well as deriving from the patient's right to self-determination and dignity⁴².

4) Patient's concern about the accuracy of his personal records. As I will contend further, in real life, the “concerns” of patients, especially psychiatric ones, are not actually, so to say, “gentle” as they appear to be in the wording of medical ethics comments. My attention was brought to a Swedish case, adjudicated by the Stockholm Administrative Court of Appeals, where a woman desired to obtain access to her health records (the judgment text did not express if such were psychiatric or not) and subsequently request the record to be expunged, which allegedly affected her “ability to work”, claiming that this information was incorrect. Despite the first instance court upheld her claim, the appellate court found for the Health and Care Inspectorate as defendant⁴³ as plaintiff had not substantiated her claim properly⁴⁴.

5) Belief that ordinary symptoms could be interpreted as a psychiatric disorder.

6) Patient's belief that his malady is not considered to be true or is supposed by physicians to be feigned.

7) The need to prove his recovery or process of recovery.

8) Invoke a course of diagnostics and treatment on basis of his own inspection of health records, or alternatively, blame the hospital staff in negligent care (if it could be called so).

9) Cause anger or frustration towards hospital staff⁴⁵.

From the side of medical ethics, scholars agreed that many practitioners used to deceive their patients or withhold their medical records in case their maladies were substantially offensive to their health, though the justification was apparent: the disclosure could amplify a patient's emotional distress and aggrieve the malady (which is quite true for psychiatric diseases), that the patient is unable to conceive what would be communicated to him, and that some patients would not want to hear the precise information concerning their maladies⁴⁶. But is that actually true? The general problem of medical ethics, to my view, is that authors do not consider that patients do not merely seek access to their psychiatric records (or even medical records in general) out of sincere curiosity, or, let us say, spy (using the words of the Munich Regional Court in its 2008 judgment⁴⁷) on the relative's ailments. If we take a look at the wording of the Austrian Supreme Court's ruling of 1936, the court has affirmed that hospital records could be kept secret from the patient about the true nature of his disease and the possible incurability of the ailment⁴⁸. But time and the law have significantly changed over the decades (though, as I will contend in the text later, the aims of the patients to produce medical records did not vary that much a hundred years ago), and thus, in 1984 the Austrian Supreme Court further held that the patients should have a right to inspection of their medical records kept upon the balance of the hospital⁴⁹. The German jurisprudence of the seventies and beyond considerably extended the right of autonomy of the patient and his informational rights. The Higher Land Court of Cologne in its respective 1981 judgment held that it is not correct to presume that non-professionals couldn't read and conceive medical records properly⁵⁰. This statement was affirmed by the Federal Supreme Court of Germany in its 1982 judgment: herein, this court added that even if a layman may not interpret the said medical records, he may employ necessary people seeking professional advice, and thus, such justification to refuse insight to medical records is not valid⁵¹. In the late 1970s, the Limburg Regional Court (Landsgericht Limburg) ruled to allow a couple to insight into medical data featuring the treatment of their neonatal child, emphasizing that it is the patient's responsibility to contend all the risks of subsequent disclosure⁵². That is, the ethics concerning the disclosure of patient records, being formulated in the mid-to-late 20^th century, could not be held to coincide with applicable jurisprudence in full volume. The fact of a multitude of litigation in respect with inspection of ordinary medical records, involving psychiatric records shows that that far not all patients do really fear their diagnosis. Moreover, many ex-patients stringently like to litigate, or they must litigate owing to various circumstance⁵³, and the necessity to obtain the desired medical records (as well as psychiatric ones) may spread far beyond the contended assumptions.

Herein, I would like to present a table of examples in jurisprudence reflecting the aims of psychiatric patients, their relatives, legal representatives etc. to inspect psychiatric records:

History of the issue

Psychiatric patient data, as the other medical records historically were not of free for public inspection. There were also not held to be admissible as evidence in some court decisions in the United States of the 19^th century⁶⁶, though other courts of the said county did account them as such, and found that the evidence obtained from psychiatric asylum books to be admissible⁶⁷. It was not disputed whether these records were of free inspection, but psychiatric records were occasionally produced for the needs of various civil proceedings as well as criminal trials. The Supreme Court of Austria in its 1936 decision has clearly indicated that medical histories are of private nature and are not public⁶⁸. As time went on, some American courts have recognized medical records to be “public records”, though not available to access to general public⁶⁹ (justification of designating the medical records as “public records” could be substantially different in the view of the courts⁷⁰). In such states, as Austria, medical record keeping practices have started from 17^th century, being governed by internal hospital regulations⁷¹. At the same time, those days, these medical records were property of the hospitals or physicians, and their inspection was not free for the patients, but only for hospital administration, hospital staff and for the sanitary officers⁷². Grьndling (2011) reports a sophisticated situation dealing with a right to inspection of medical records in an unnamed city in Austria occurring in 1888: a lawyer attempted to inspect medical records of his client who was to commence an action for damages, but was refused to have them produced by the administration of the hospital. There is no information of whether this lawyer attempted to apply to the court to produce the medical records by a subpoena: the conjectural court decision would be stunning to behold and to comment⁷³. Forgery of medical certificates was well-known in French case law of 19^th and early 20^th century⁷⁴. False declarations in respect with birth certificates where a concubine was designated defendant's wife, however, were not found to be strictly a forgery in the earlier (pre-Napoleon Code) French jurisprudence⁷⁵, but in fact, the offsprings suffered a loss of right of heritage not being able to prove the fact of his forbearer's marriage, which was actually not an uncommon subject of civil litigation between the offspring and collaterals those days⁷⁶. Curious cases have occurred in respect with separation de corps proceedings. In one of such cases brought before the Court of Cassation in 1892, a young woman filed a separation de corps action blaming her husband for not having sexual intercourse with her at all. She produced a medical certificate approving that she was virgin after having cohabited with defendant for several years. The fact of her virginity was not disputable, but the Court of Cassation did not consider it as a valid reason for legal separation, augmenting that plaintiff's husband had never acted impiously or humiliate her⁷⁷. In fact, similar judgments were not rare for French

jurisprudence those days⁷⁸. Nevertheless, the mores of society could differ from one jurisdiction to another. For instance, the Oberlandesgericht of Hamburg in a 1901 judgment was absolutely firm to conclude that sexual intercourse is an inalienable part of marital life⁷⁹.

Some instances featuring a revelation of psychiatric data could be found in older French jurisprudence. In one of my recent treatises relating to the history of medical secrecy, I have commented upon two similar cases⁸⁰, which we will briefly discuss hereafter. In 1888, a director of a mental asylum in Besancon, France published several hundred specimen of a pamphlet describing the history of illness of his ex-patient, whose name was not directly mentioned, but she could have been identified, since her husband's name was clearly mentioned. The Court of Appeals of Besancon said that a publication of the history of illness does not violate medical confidentiality, unless the patient is identifiable. The fact that the said descriptions were taken from previously prepared medical records, did not actually change the result - he was fined for medical confidentiality violation⁸¹. Another outstanding case of the mid 1890s, Consul c. Pitres, featured a lawsuit of the aunt of a deceased young woman Pauline Consul, against a famous psychiatrist Albert Pitres for having included the medical history of her niece into his book on psychiatry, which featured an extensive description of her symptoms and treatment⁸², as well as a photograph of her⁸³. She blamed defendant in a medical confidentiality breach, which is criminally punishable in France (those days, under Art. 378 of the Napoleon Penal Code). However, the courts rejected her claim. Firstly, upon the applicable legislation and case law, only a living person could commence a lawsuit against the physician for breach of medical confidentiality, the relatives of a deceased could bring a civil action for defamation of the dead with a burden of proof that the publication has caused damages to her surviving relatives, or could cause such in the future. Moreover, Pitres proposed to exclude Pauline's photograph from the said book. Thus, the plaintiff was unable to prove damages and lost the lawsuit⁸⁴. The Cassational Court affirmed the judgment of the court of Bordeaux. Moreover, upon the findings of this court, the young woman was pleased with writings of Albert Pitres, and consented to the publication of these materials, including the photograph⁸⁵.

The issue of medical and psychiatric records production in common law world is quite complicated. The complexity of this issue is claimed by fact that there is very little (at least as supposed by DeWitt (1953)⁸⁶) case law authority concerning actions against physicians or hospitals for disclosing the medical record content of patients. It is not however definitely known that it is actually so. For instance, Shuman (1985), one of the finest authors dealing with medical secrecy and its origination in common law to my mind, contended, inter alia, that there could have been more judgments on the subject from the earlier days of common law, though undiscovered⁸⁷. Medical records of a third party (not even speaking about litigants) have been known to be used as evidence in civil litigation: in a dispute between the remarried widow and the trustees of the deceased husband concerning the school education and place of residence of her three minor daughters, the woman brought in the medical reports concerning the vulnerable health of the daughters confirming their health could be damaged, had they been removed. The Court of Sessions requested Doctor John Abercrombie, a celebrated Scottish surgeon, to visit the minors, consult the family physicians and thereafter submit a report. Upon the report, the elder sister truly necessitated constant care from her mother. The Court found that it would be not justified to separate the two other minors from the elder sister and the mother, dismissing the claim⁸⁸. The duty to preserve confidentiality of patient-physician communications has been affirmed in the splendid decision of AB v. CD (Whyte v. Smith) sixteen years after Morton v. Thorburn discussed above, though it recognized that this duty may surrender for the needs of justice - the Court of Sessions, however, did not clarify in which instances it would be done so⁸⁹ - later on, Shuman claimed that the approach to confidentiality of such communications between patients and the physicians is utilitarian⁹⁰: in short, it means it would be for the appreciation of the judge to decide whether the medical facts obtained in the course of the physician's exercise of his profession could be disclosed as evidence. Shuman (1985) did not speak about extrajudicial revelations of medical secrecy akin to Consul or AB v. CD.

Inspection by the third parties (heirs/relatives/dependents) in relation of a deceased patient.

The relatives of a deceased patient may also request to inspect his medical records. Primarily, they strive to inspect these medical records in order to define the cause of death, determine if it was caused by the negligence of the hospital staff, or produce evidence that the patient was treated negligently. Occasionally, litigation between the heirs or relatives and the hospital may derive from an alleged fraud in issuing the death certificate and the plaintiffs seek to obtain the treatment records in order to define the actual diagnosis and the course of treatment⁹¹.

Claims for producing medical records of a deceased patient could be spotted in the jurisprudence of many European countries. In the same way, medical records are requested by the relatives or heirs of a deceased person who died in a mental asylum. In many European countries, upon legislation and jurisprudence a patient may dissent to disclosing medical data regarding his state of health and treatment - in express or presumed form; at the same time, it could be to the contrary: a patient may sign a document to relieve treating personnel from confidentiality that would firmly enable them to testify on his state of health in a court⁹². Several rules have been established by courts in respect with the right of heirs to inspect the medical records of a deceased patient in Germany:

1. Medical confidentiality concerns are not itself a justification to deny access to the deceased person's medical records. It has to be reasoned⁹³.

2. The physician's obligation to maintain confidentiality does not cease after the patient's death⁹⁴.

3. The right to inspection of medical records, upon the wording of the Federal Supreme Court is an ancillary claim arising from the treatment contract, and it is not “fully highly personal” not to be transferred to other persons, regardless of the fact the patient concerned is living or has deceased⁹⁵.

4. The heir's (or other related people) right to inspect medical records derives from an express or presumed consent of the patient while living⁹⁶.

5. The heirs' (or other related people) interest has to be substantiated⁹⁷.

6. The hospital staff or physician may prevent the insight into medical records if such was the will of the patient while he was still living⁹⁸.

7. The desire of the patient not to know the unfavorable prognosis of their malady usually does not survive his demise⁹⁹.

8. In case the third parties request to produce medical records of a deceased patient to commence a malpractice suit, it is not justifiable for the doctor to deny insight if he has doubts that the prospective plaintiff will assert the claim for damages¹⁰⁰. If a patient has died in a psychiatric asylum, and the fact that the prosecutor's office has concluded investigative proceedings regarding his death due to lack of evidence of third-party negligence, it may not be regarded as a justification to deny access to his health records, as the next of kin may file a criminal complaint in the future again. Even if no penally punishable negligence proof is established, plaintiff could also file a civil action for damages sustained for pain and suffering (“Schmerzengeldanspruch”, as it is called in German)¹⁰¹.

9. In modern case law, the courts find that the wish of the patient to maintain confidentiality is not a rule, but rather an exception¹⁰².

10. The patient's wish to maintain confidentiality necessitates to be founded upon firm evidence. For example, the Higher Regional Court of Munich in its 2008 judgment ruled that the mere fact that the patient has distanced himself from his family during the last period of his lifetime, as well as did not bequeath them property did not serve as a justification to conclude that he did not wish them to inspect their medical records¹⁰³. Moreover, upon the findings of the court, the fact of his distancing from the family was not considered to be actually true¹⁰⁴. What is interesting, in a 2015 decision of the Administrative Court of Freiburg, a psychiatric patient, who committed a suicide at a mental asylum and repeatedly acted to distance himself from his mother, the court nevertheless held that the presumed will of the patient would stand for the clarification of what had happened to him¹⁰⁵. Therefore, it could not be ultimately assumed that the mere fact of distancing from the future heirs, or relatives, dependents etc., could be considered as a presumption that the patient would choose to maintain the confidentiality of his medical record. However, similar assumptions are decided by the court individually and may considerably vary from one to another jurisdiction (i.e., see Christelle below).

11. The right of inspection by legal entities, such as insurance companies may exist, but it derives from public law regulations, which clearly provide such right¹⁰⁶.

In Belgium, upon section 9 of the Patients Right Act of 2002, the relatives of a deceased patient could also request his medical records for various purposes, but the insight may also be denied upon an express wish of the patient concerned. The same applies to psychiatric records, which is already virtual in jurisprudence. In the decision of the Cassational Court of 2016, plaintiff was not granted access into her son's medical record, who was a psychiatric patient and continued rehabilitation at the time of his demise. The facts of this judgment were as follows: one Florent, the son of plaintiff, attacked and stabbed his mother with a knife in a state of delusion. Luckily, she survived. The man was put into a psychiatric asylum in Bertrix. In early 2009, Florent was conditionally released under the obligation to live in a retirement house «Le Manoir» in Izel (Chiny, Belgium) as well as being constantly supervised by a physician (Dr. Jean) and being prohibited to meet his mother. He continued to visit the mental asylum as an outpatient and was subsequently supervised by the same physician. In early 2010, Florent was hospitalized owing to his epileptic seizures and died within a few days. The burial was conducted by the father of the decedent, of which the mother was notified several days after. The woman desired to know the cause of his death and subsequently requested Dr. Jean through an intermediary physician to communicate a copy of the treatment documents. Dr. Jean wrote her a letter where he refused to give out the dossier on grounds of the decedent's plea not to give out the medical records to his mother. Before the Cassational Court, she contended that her right to inspect medical records of her son were enshrined by the Patient's Right Act of 2002, Section 9 (4), upon which the third-party access, if justified and not directly prohibited by the patient concerned, is allowed. Defendant Dr. Jean claimed that the medical records belonged to the asylum, not to himself, maintaining that the decedent expressly opposed such disclosure. At the same time, Florent was eager to speak to his father, being convincingly persuaded to terminate all contacts with the plaintiff, which was confirmed by other hospital staff. The same was stated by the decedent before the Social Defense Commission in 2008 and 2009 - in general, decedent had repeatedly expressed, both orally and in writing, to suppress any contacts with the plaintiff. The court said, that «To decide otherwise [to grant her access] would be to annihilate the patients will and would be contrary to the intention of the legislature to give the patient control over the fate of the medical data after his death». Thus, the court dismissed her claim¹⁰⁷.

Conclusions

The given article provided a research on a complicated and sensitive aspect of an insight into medical records, namely the medical records of psychiatric patients. Despite the litigation concerning psychiatric records is less frequent than of ordinary ones, it concerns a wide variety of foundations for the legal claim, and most of them are far from being made out of mere curiosity (as the German case law shows, many plaintiffs needed their psychiatric records as evidence for litigation). The nature of psychiatric records, as a very sensitive one, was outlined by the courts decades ago, as the potential harm to a psychiatric asylum patient, even the one who has been an inpatient long ago, could be hardly predictable. The case law also shows that courts are not reluctant to recognize that even psychiatric patients have a right of insight to these medical records, but their amount should be considered upon a case-bycase basis, that is, each case is unique and individual for the court's assessment. A firm body of case law regarding psychiatric records could be found in Germany, where the Federal Supreme Court has delivered a number of judgments since 1980s, not even mentioning the lower courts. An interesting elaboration was found in the case law of Belgium, where the Court of Cassation adjudicated the case of Christelle (2016), having coined a number of principles, upon which a third-party access could be granted, or reversely denied. All the aforesaid testifies that access to psychiatric records is a distinct segment in medical law, which demands extensive research and scholarship.

Литература

¹ See. e.g. Wyrok Wojewodzkiego Sqdu Administracyjnego w Warszawie z dnia 2 marca 2015 r. VII SAWa 1369/14 (Warsaw Voivodeship Administrative Court, judgment of March 2, 2015).

² See, for instance a case from Norway on the subject: Borgarting lagmannsrett, 2020-07-17, LB-2020-96569 (No. 20-096569ASK-BORG / 04) (Borgarting Court of Appeals, judgment of 17 July 2020).

³ OLG Karlsruhe, Urt. v. 14.08.2019 - Az.: 7 U 238/18, para. III, a, b. Over 30 years ago, the German Federal Supreme Court also held that the heirs or close relatives of the deceased patient would not be able to inspect the medical records of the decedent in case he expressly forbad it: BGH, 31.05.1983 - VI ZR 259/81, para. 13-14; 17; 18.

⁴ Accord the Decision of the Spanish Constitutional Court of 1989: Mitja Lluna Societat Cooperativa Limitada, Tribunal Constitutional, AUTO 600/1989, de 11 de diciembre, Sec. II, 1-3 (recurso de amparo action).

⁵ For instance, in Portugal, providing healthcare, as of the wording of the Supreme Court, results from the contractual duty of the physicians towards the patients: AA, BB, CC contre Dr. DD & Gabinete de Radiologia de A..., Lda, Tribunal Supremo de Justica, 19 junho 2001, Processo No. 01A1008, Sec. III.

⁶ Sentencia Contencioso-Administrativo № 206/2018, Tribunal Superior de Justicia de Castilla y Leon, Sala de lo Contensioso, Seccion 1, Rec. 553/2017 de 28 de Febrero de 2018, Sec. III.

⁷ See. Sentencia Social № 372/2005, Tribunal Superior de Judicia de Castilla y Leon, Rec. 372/2005 de 21 de Marco de 2005, Sec. IV.

⁸ See. e.g. the judgment in the case of Mart Luz by the Supreme Court of Spain: Sentencia del Tribunal Supremo, 18 de Octubre de 2012, No. 990/2012 (STS 990/2012); Sec. Fundamentos de Derecho, I-V.

⁹ Sentencia del Juzgado Cotencioso-Administrativo № 2 de Albacete, de 31 de Marco de 2016, No. 49.

¹⁰ See. I. v. Finland, Judgment of 17 July 2008, App. No. No. 20511/03, Sec. I (para. 7-19).

¹¹ See, for instance the judgment of the Supreme Court of Latvia (2008), Maris D. pret BO VAS „Paula Stradina klmiskд universities slimmca” un BO VAS „Iekslietu ministrijaspoliklmika”, Latvijas Republikas Augstдkдs tiesas, Senдta Civillietu departa- menta, 2008 gada 9 janvдra, Lietд Nr. SKC - 13, p. 7-9 (Supreme Court, Department of civil cases, Judgment of 9 January 2008). Section 4 (7) of the Law of the Latvian Republic “On the Rights of the Patients” (2008) seemingly deals with such types of medical records: “Information need not be provided to a patient only in such case if such information or facts are at the disposal of the physician that the receipt of information significantly threatens the life or health of the patient or other persons''. However, to date I was not able to trace a Latvian court judgment which expressly dealt with the aforegiven provision. Concerning the application of section 4 of the abovemen- tioned law which concern the informational rights of the patient, see Administrate rajona tiesa Rigдs tiesu nams, 2017.gada 12.maijд, Lietas Nr. A420313316 (Lietas arbrva Nr. A42-00955-17/5), at section 10.1-10.4 - 13 (District Administrative Court of Riga, Judgment of 12 May 2017); Vidzemes apgabaltiesas, Civillietu tiesas kolлgija, 2018.gada 10.septembrп, Lietasarhпva Nr. CA-0212-18/14, p. 2-4.

¹² See, for instance, Staten v/Arbeids- og velferdsdirektoratet mot A., H0yesterett, HR-2011-2072-A - Rt-2011-1433, para. 3-9 (facts); 42-56 (judgment) (Norway Supreme Court, Judgment of 8 November 2011).

¹³ Landstinget i Uppsala mot Datainspectionen, Hцgsta fцrvaltningsdomstolen, 2017-12-04, HFD 2017:67.

¹⁴ H0gsta Domstolen, 2016-11-10, No. Ц2491-15, NJA 2016, p. 922, at para. 20-26.

¹⁵ Such expression may be found in Portugal (originally “informaзao de saude”.). For instance, see Lei No. 12/2005, “Infor- maзao genйtica pessoal e informaзao de saьde”, article 2; in case law: Unidade de Saude A c. B..., Acordao do Supremo Tribunal Administrativo, 08.08.2018, Processo 0394/18, Section III, 1-2.

¹⁶ Mainly adopted in Spanish-speaking countries, being designated as “historia clinica” both in legislation and case-law. See, e.g., Millan/Velasco c. Saludcoop EPS & Clinica Metropolitana de Bucumaranga, Corte Constitutional, Sentencia T1146-08 (Columbia).

¹⁷ J. Antomas, S. Huarte del Barrio, Confidencialidad e historia clinica, An. Sist. Sanit. Navar. 2011; 34 (1): 73-82, at 76.

¹⁸ OLG Bremen, 31.07.1979 - 1 U 47/79, at para. 15.

¹⁹ See., for instance, Evidence - Hearsay - Admissibility of Hospital Record (Comment on Recent Decisions), 19 St. Louis L. Rev. 255, 255-256 (1934) (C.B.P., Anonymous).