CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 novembre 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        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)