Vinnytsa doctor, Svitllana Poberezhets succeeds in upholding the right of each citizen to privacy
The Pechersky District Court in Kyiv has concluded its consideration of the administrative claim lodged by Svitlana Yurivna Poberezhets, an anaesthetist and resuscitation expert from the Vinnytsa City Clinical Hospital against the Ukrainian Ministry of Health, the Ministry of Employment and Social Policy of Ukraine, the Social Insurance Fund for Temporary disability and the Industrial accident and occupational diseases which have caused disability Fund and the Ministry of Justice of Ukraine. She was demanding that the court recognize as unlawful the normative legal act in the form of a Joint Order of the administrative respondents “On approving the form and technical description of a medical certificate and instructions on the procedure for filling in the form on temporary inability to work”. In her administrative claim, Svitllana Poberezhets argued that the requirement to provide information about a persons diagnosis and the code of their illness according to the International Classification of Diseases should be declared unlawful as it violated the constitutional right of Ukrainian citizens to privacy ((confidentiality of medical records).
In spite of the denials by the administrative respondents, the panel of judges of the Pechersky District Court in Kyiv (Judges Malynin, Kvasnevska and Volkov) entirely upheld all the demands in Svitllana Poberezhets claim. The normative legal act in question was declared partially invalid. Pursuant to the court ruling the provision of information about a persons diagnosis contravenes a whole range of normative legal acts of highest legal forces, namely the Constitution of Ukraine (Articles 3,19, 21,22, 32, 55, 64, 68), the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 8), the Fundamental Principles of Ukrainian Legislation on Healthcare (Articles 4, 6, 7, 8, 14, 40, 41), the Civil Code of Ukraine (Articles 285, 286), the Law of Ukraine “On information” (Article 23).
If the ruling of the first instance court comes into force, then all Ukrainian doctors will be prohibited from indicating on medical certificates the diagnoses of their patients, this meaning that those at work will not be able to find about what the employees illness was. In 2005 almost 11 million such medical certificates were issued in Ukraine.
The Vinnytsa Human Rights Group (VHRG) considers the ruling of the Pechersky District Court in the case involving medical certificates to be an important precedent and a breakthrough in protecting personal information in Ukraine. At the same time, the VHRG notes that there are a whole range of other normative legal acts issued by the Ministry of Health which enable the disclosure of private information about a persons state of health (for example, information about a persons diagnosis is provided according to where they are studying by adding it to the section “Diagnosis” in the certificate for being released from lessons or lectures). The Vinnytsa Human Rights Group is planning to continue appealing against such normative legal acts in Ukrainian courts.
Svitllana Poberezhets was represented by the Coordinator of the Vinnytsa Human Rights Group, Dmytro Groisman, and Ukrainian Helsinki Human Rights Union lawyer Viacheslav Yakubenko. The case was supported by the UHHRU Foundation for legal aid to victims of human rights violations
“Prava ludyny” commentary
Material regarding this case can be found at: http://khpg.org/index.php?id=1147909862. This ruling could, we believe, be very useful to many of those touched by the problems of our healthcare system.