Example 1: Litigating to protect private patient medical records in Ukraine

Ukraine Court Decision: Medical Certificate and Privacy

http://cop.health-rights.org/teaching/54/Ukraine-Court-Decision–Medical-Certificate-and-Privacy

Project Type: Litigation

The Organization 

Vinnitsa Human Rights Group, Ukraine
E-mail: vpg@ukr.net, Web: http://www.vpg.org.ua/

Vinnitsa Human Rights Group (Vinnitsa) is a civil society organization concerned with promoting the rule of law, as well as heightening individual political and legal awareness. The organization works to facilitate the harmonization of Ukrainian law with European human rights standards, with a particular focus on the rights of patients and refugees. In this case, Vinnitsa facilitated a civil action brought by a Ukrainian citizen whose right to patient privacy had been violated.

The Problem

To receive disability benefits in Ukraine at the time this case was first heard, an applicant’s medical certificate documenting his/her diagnosis had to be forwarded to his/her employer. Mrs. Svitlana Yuriyivna Poberezhets, a Ukrainian citizen seeking disability benefits, challenged the release of her private medical information to her employer on the basis of the Ukrainian Constitution, the European Convention for the Protection of Human Rights and Fundamental Freedoms, and various Ukrainian civil codes.

Procedure

Vinnitsa Human Rights Group brought an administrative claim in the Pecherskyi District Court in Kyiv on behalf of Poberezhets. The claim was brought against the Ministry of Health of Ukraine, the Ministry of Labor and Social Policy of Ukraine, the Social Insurance Fund for Temporary Disability, and the Social Insurance Fund for Industrial Accidents and Occupational Disease of Ukraine.

Rights Violations

Ukrainian Const. Art. 32: The collection, storage, use, and dissemination of confidential information about a person without his or her consent shall not be permitted, except in cases determined by law, and only in the interest of national security, economic welfare, and human rights. Ukrainian Constitution: www.ccu.gov.ua/en/doccatalog/list?currDir=12083.

EHCR Art. 8: Everyone has the right to respect for his private and family life, his home and his correspondence. 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.
EHCR: http://tinyurl.com/3ydyjvo.

Ukrainian Civil Code: Ukraine adopted a new civil code, which entered into force on January 1, 2004. The code provided numerous protections for private data, which this court interpreted to include patient diagnosis. Ukrainian Civil Code: http://zakon2.rada.gov.ua/laws/main/en/annot.

Arguments and Holding 

Poberezhets sought a declaration that inclusion of her specific disease on her medical certificate constituted dissemination of confidential information, in violation of her rights under Article 32 of the Ukrainian Constitution. Article 32 states, “The collection, storage, use and dissemination of confidential information about a person without his or her consent shall not be permitted, except in cases determined by law, and only in the interest of national security, economic welfare and human rights.” As the court noted, the medical certificate was available for use in civil matters as a ground to release an employee from their responsibilities to their employer. It was also available for use in public relationships as a basis for disability benefits. Therefore, release of a medical certificate in this case constituted dissemination of information.

Moreover, there were no security, economic welfare, or human rights grounds to justify the release of information. Therefore, since Article 8 of the ECHR and various provisions of the Ukrainian Civil Code clearly established that a person’s diagnosis is private, confidential information, the requirement that the applicant’s specific medical status be disclosed to her employer was in violation of her rights under Article 32 of the Ukrainian Constitution. The administrative bodies could not force patients to turn over information related to their diagnosis as a condition for receiving disability benefits.

Analysis and Commentary

Privacy and individual autonomy are the building blocks of democratic society. Over the past century, there has been an unusual strain on the right to privacy. On the one hand, technological advances lead to increasingly powerful and sophisticated means of collecting and distributing private data. At the same time, however, people gain greater respect for individuality and privacy, and they demand that legal systems protect their private medical data. Indeed, privacy is a broad term that evolves with the evolution of society, including the development of ever larger and more easily transmitted medical data depositories.

The protection of private medical information is of pressing concern in Ukraine today. Although Ukraine’s information technology infrastructure still lags behind EU member states, it is modernizing at an astonishing rate. In 2006, 4.4% of Ukraine’s population used the Internet. In 2011, that number was 30% (World Bank). Establishing a right to privacy with respect to medical data is especially important given the rapid pace of technological development in Ukraine and the corresponding potential for abuse of patient privacy.