Table 2: Patient Care and the Right to Privacy
Examples of Human Rights Violations
- Patient medical information is open to all hospital staff, including those not involved in patient care.
- Patients are forced to disclose their medical diagnosis to their employer in order to obtain sick leave from work.
- Medical examinations take place under public conditions.
- Terminally ill patients are forced to remain in public wards.
- Staff of medical/psychiatric institutions routinely open patient mail and review their correspondence.
|Human Rights Standards||Treaty Body Interpretation|
|ICESCR 12(1): The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.||CESCR General Comment No. 14 (12): While highlighting the importance of information accessibility in health care, CESCR says that State Parties “should not impair the right to have personal health data treated with confidentiality.”|
|CRC 16(1): No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.||CRC General Comment No. 4: Encouraging state parties to strictly protect adolescent health privacy and describing health care provider obligations to maintain privacy of adolescent patients; suggesting state parties enact legislation to protect adolescent patient privacy; and drawing attention to patient confidentiality and privacy component living in CESCR’s commitment to the highest attainable standard of health. CRC/GC/2003/4 (2003), ¶ 11, 33, 40.CRC: Highlighting the need for confidentiality for adolescents with respect to sexual and reproductive health in Djibouti. CRC/C/97 (2000), para 555.|
|CEDAW 12 (1). States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.
CEDAW 12(2). Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.
|CEDAW: Recommending that Paraguay “adopt a policy for patient privacy, to safeguard doctor-patient confidentiality specifically when treating women for abortion complications.” CEDAW/C/PRY/CO/6 (2011), para. 31.|
|Human Rights Standards||Case Law|
|ECHR 8(1). Everyone has the right to respect for his private and family life, his home and his correspondence.
ECHR 8(2). There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
|ECtHR: The applicant’s medical records were sent from her clinic to the Social Insurance Office without her knowledge or consent. The Court held that “the protection of personal data, particularly medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life . . . . Respecting the confidentiality of health data is a vital principle . . . . It is crucial not only to respect the sense of privacy of the patient but also to preserve his or her confidence in the medical profession and in the health services in general.” M.S. v. Sweden, 20837/92 (August 27, 1997).ECtHR: The applicant’s medical records, including her HIV diagnosis, were included in her husband’s trial against her will, and the trial record was subsequently made public. The Court noted that disclosure of health data “may dramatically affect [a person’s] private and family life, as well as social and employment situation, by exposing him or her to opprobrium and the risk of ostracism.” Z. v. Finland, 22009/93 (February 25, 1997).
ECtHR: The applicant’s correspondence sent to him during at his stay at a psychiatric hospital was first sent to a curator who selected which correspondence to pass on to the applicant. Although Art. 8(2) permits violations of Art. 8(1) for the protection of health, the Court found that the hospital violated Art. 8, stating that there were no measures to ensure that the law permitting correspondence screening was not arbitrarily applied or to protect against arbitrary interference of Art. 8(1). Herczegfalvy v. Austria, 10533/83 (September 24, 1992).
Declaration of Lisbon on the Rights of the Patient, Principle 8: Right to Confidentiality.
a. All identifiable information about a patient’s health status, medical condition, diagnosis, prognosis and treatment and all other information of a personal kind must be kept confidential, even after death. Exceptionally, descendants may have a right of access to information that would inform them of their health risks.
b. Confidential information can only be disclosed if the patient gives explicit consent or if expressly provided for in the law. Information can be disclosed to other health care providers only on a strictly “need to know” basis unless the patient has given explicit consent.
c. All identifiable patient data must be protected. The protection of the data must be appropriate to the manner of its storage. Human substances from which identifiable data can be derived must be likewise protected.
Declaration on the Promotion of Patients’ Rights in Europe:
Art. 4.1: All information about a patient’s health status . . . must be kept confidential, even after death.
Art. 4.8: Patients admitted to health care establishments have the right to expect physical facilities which ensure privacy.
Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data.
European Convention on Human Rights and Biomedicine:
Art 10(1): Everyone has the right to respect for private life in relation to information about his or her health.
Explanatory Report, Para.63: The first paragraph establishes the right to privacy of information in the health field, thereby reaffirming the principle introduced in Article 8 of the European Convention on Human Rights and reiterated in the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. It should be pointed out that, under Article 6 of the latter Convention, personal data concerning health constitute a special category of data and are as such subject to special rules.
European Charter of Patients’ Rights,
Art. 6: Every individual has the right to the confidentiality of personal information, including information regarding his or her state of health and potential diagnostic or therapeutic procedures, as well as the protection of his or her privacy during the performance of diagnostic exams, specialist visits, and medical/surgical treatments in general.