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Vinnytsa Doctor’s victory over three ministries

22.08.2006    source:
Nataliya Bolkhovska
More about a ruling which firmly places respect for constitutional rights above economic expediency

A medical diagnosis may no longer be given on a medical certificate as this constitutes a breach of medical confidentiality.

“I had to resign from my job after changes in my private life. I had been seeing the same guy for some time, and got pregnant. My lover, however, didn’t want a child and we split up. I didn’t have any choice but to have an abortion. The operation led to complications and I had to spend several more days in hospital. I handed in the medical certificate from the hospital at my place of work, and was horrified to find that after a week all my colleagues knew that I’d terminated my pregnancy. It was topic No. 1 on the gossip list.

Of course it’s possible that the person in the human resources section didn’t understand when she told her workmates why I hadn’t been at work. However the atmosphere in the team, the nasty jokes and jibes made it impossible for me to stay there, and I resigned.”.  This is just one story about how a person became a victim through their medical certificates in which the medical reason for their absence from the office was given, and a victim of the normative acts of Ukrainian legislation. .

One could reel off hundreds of such examples where a manager discovers from a medical certificate explaining temporary absence that his or her employee has a chronic condition, and that the person will consequently often need time off.  Or when the accountant sorting out sickness pay tells colleagues what the person’s illness is, and it becomes the subject of discussion for the entire office. Even if you had some kind of venereal disease, and instead of a diagnosis the medical certificate gave a code, anyone could find out through a library or the Internet without any major effort what the condition was, and the information became common knowledge.

However a person appeared who was prepared to be first in taking on the state machine.

Doctor at Vinnytsa City Clinical Hospital No. 2 Svitlana Poberezhets lodged an appeal with the court against the form of medical certificates.  The respondents in the case were 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. In short, those state institutions which had approved such a form of medical certificates for Ukrainian citizens.

The pretext for the court appeal was quite banal – a diagnosis of “acute respiratory viral infection”.  Svitlana Yurivna considers that without her consent and permission information of a confidential nature became common knowledge, and this infringes her constitutional rights.

The Pechersky District Court in Kyiv considered the case for over three months. The respondents – the three ministries, including the Ministry of Justice which had agreed the form of the medical certificate and the two Funds gave their explanations as to whether it is legal to give information about the medical diagnosis on the medical certificate. As a result of its deliberation, the court established that the claimant had justified all her demands and handed down its ruling. “To declare unlawful and in contravention of legal acts of the highest juridical force the Order (of the Ministries and the Funds) ““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” with regard to the inclusion on the medical certificate of information about a preliminary or final diagnosis, and the code of their illness according to the International Classification of Diseases and to cancel this part of the Order”.

What does this mean for all Ukrainian citizens? Firstly, during a short period of time state institutions must, according to the court ruling, change the form for the medical certificate. And this means that a number of Articles of the Constitution of Ukraine will finally be adhered to, including Article 32 which states: “No one shall be subject to interference in his or her personal and family life, except in cases envisaged by the Constitution of Ukraine. 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 interests of national security, economic welfare and human rights.”  Secondly, this means that ordinary Ukrainian citizens have the right and can change things in our country.  This in fact is democracy in the true meaning of the word.

This was how Svitlana Poberezhets herself summed up her victory:

“Of course I see this as a great victory in defending the right to privacy of all patients in Ukraine. I think that the Ministry of Heath will lodge an appeal however I’m convinced that the courts at a higher level will confirm our position. I was particularly heartened by the justification part of the court ruling, since for the first time in the case law of general courts in Ukraine a resolution was adopted to the effect that economic expediency may not outweigh the need to observe constitutional human rights. Despite the fact that the court ruling has not yet come into effect, all Ukrainian citizens are entitled to demand that a medical diagnosis is never written on their medical certificates.

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