Case 2008-015f

This case concerns the right to privacy in a health care context. The Union of Belgian professional Medicine Associations sought the annulment of the Flemish Community’s decree concerning the establishment of a medical information database.

It was argued that the right to private life as guaranteed in article 8 of the European Convention of Human Rights, article 22 of the Belgian Constitution and the Belgian federal law of 8 December 1992 concerning the use of personal data had been violated. The general use and transmission of a patient’s personal data in the medical information data base can only take place upon written permission. Moreover, the personal data must only be used in the exceptional circumstances listed.

The Court held that the use and transmission of a patient’s personal data is an interference with the right to private life that follows from the general prohibition of the use of personal data. Any interference must be lawful, necessary for a legitimate aim and proportional.

The general wording of the possibility to transmit personal data upon the patient’s unwritten permission was considered to be in violation of the limited exceptions allowed for under the federal data protection law.

A patient’s tacit permission to transmit personal data can only be assumed in a context of a referral that is part of on-going treatment, to the extent that the transmission takes place within the team that has been approved of by the patient, and that it is limited to the data necessary for the continuity of the treatment. The Court therefore held that the decree’s provisions which allow for the possibility of an unwritten or tacit permission in other circumstances than the ones mentioned violated the right to private life as guaranteed by the federal data protection law.

"B.20. Disclosing personal data as prescribed by the contested Decree constitutes an interference with the right to respect for private life as guaranteed by article 22 of the Belgian Constitution and the abovementioned treaty provision.

In order for such an interference to be permissible, the interference needs to be necessary to achieve a legitimate aim, which includes that there must be a reasonable relationship of proportionality between the effects of the measure for the affected person and the interest of the community."

"B.27. The exceptions mentioned in article 7, § 2 of the law of 8 December 1992 concerning the prohibition of the processing of personal data in the health sphere must be interpreted restrictively. Although undoubtedly many data which need to be exchanged within the operational information system could be classified as exceptions [under article 7, § 2], it must be noted that the challenged provision does not limit the required permission to the data which are classified under the abovementioned exceptions. The condition in article 4 of the Decree of 16 June 2006 that the exchange of personal data must be necessary to assure the continuity and quality of health care, is defined in such a broad sense that it will inevitably also concern data exchanges which are not covered by the aforementioned exceptions of article 7, § 2 of the law of 8 December 1992, so that they still require a written permission from the person involved.

Because of its general wording, article 19, § 1 of the contested Decree violates the protection provided by the requirement of a written permission of the patient in article 7, § 2, a) of the law of 8 December 1992. "

"B.29. The fact that the patient’s permission is assumed to have been obtained tacitly if the transmission of personal data occurs in the context of a referral which is part of ongoing treatment, constitutes in itself an infringement of the requirement of the patient’s written permission, but can be accepted because of the nature itself of the patient’s referral. However, the permission can only be assumed to have been obtained tacitly if it concerns the exchange of necessary data within a treatment team, in which of the medical practitioners have been included with the consent of the patient, the latter being convinced that continuity of health care needs to be guaranteed. Every data exchange in contravention of this, for instance because the patient wishes a second opinion which he does not want to be influenced by results established in earlier stages of the treatment, would be incompatible with article 7 of the law of 8 December 1992."