Summary:

I.

The constitutional complaint relates to the right of a person in forensic detention to view their medical files.

In 1990, the complainant was sentenced to a total of eleven years’ imprisonment; furthermore, it was ordered that he would be held in forensic detention. In the psychiatric hospital where the complainant was detained, certain privileges which he had previously been afforded were withdrawn in 2000. Following this, the complainant’s defence counsel requested to see his complete medical files. The clinic replied that it could only provide objective findings such as EEG, ECG and laboratory data, but not the subjective estimations, working hypotheses and diagnostic considerations contained in the documentation.

The complainant thereupon applied to the Heidelberg Regional Court to oblige the institution to allow his counsel to view all medical files. The Regional Court rejected the application as unfounded. The Karlsruhe Higher Regional Court subsequently rejected the appeal filed against the rejection. The complainant lodged a constitutional complaint before the Federal Constitutional Court.

II.

In response to the constitutional complaint, the Second Chamber of the Second Senate of the Federal Constitutional Court held that the challenged decisions violate the complainant’s fundamental right to self-determination – also in its informational dimension – as well as his personal dignity following from Article 2.1 in conjunction with Article 1.1 of the Basic Law.

The proceedings are remanded to the Regional Court to the extent that the decisions have been overturned.

The ruling is based in essence on the following considerations:

The fundamental right to informational self-determination guarantees an individual’s power to determine, in principle, for themselves the extent to which their personal data are disclosed and used. This fundamental right is not guaranteed without limits. Limits however require a statutory basis and must respect the principle of proportionality; above all, they may not extend beyond what is indispensable for the protection of public interests.

It is further recognised that a lack of access to third-party knowledge on the subject of one’s own person may also affect the right to individual self-determination protected by Article 2.1 in conjunction with Article 1.1 of the Basic Law, and that the fundamental right to informational self-determination thus also affords its bearer legal rights relating to access to the data.

In respect to access to medical files, the Federal Constitutional Court found that the patient’s right to self-determination and personal dignity (Article 1.1 in conjunction with Article 2.1 of the Basic Law) requires that each patient, in respect of their doctor and hospital, in principle, have the right to view the medical files relating to them. This right to information of the patient is not guaranteed without limit in the Basic Law. This however does not change the fact that it is based directly on the patient’s right to self-determination, as guaranteed by fundamental rights, and thus must be attributed lesser weight only if opposed by correspondingly weighty interests. In the weighing of interests thus required, considerable weight attaches, in principle, to the patient’s interest in information. Physicians’ medical files, containing information regarding case history interviews, diagnoses and therapeutic measures, directly affect the patient’s private sphere. For this reason, and given the potential considerable significance of the information contained in such documents for self-determined decisions to be made by the patient, the patient generally has a protected interest in finding out what has been undertaken in regard to their health. This applies all the more concerning information on the patient’s mental state.

These constitutional requirements have not been met in the challenged decisions of the Regional Court and the Higher Regional Court.

A fundamental rights violation is also present if one supposes that the fundamental right to informational self-determination, in respect of access to data relevant to personal self-determination, is only a right to the weighing of the interest in information against other interests, and consequently only constitutes a right to information which is limited by contradicting interests from the outset – regardless of any statutory arrangement. Even if this is the case, the fundamental right requires a weighing of interests in which all of the complainant’s interests relevant to the weighing must be taken into account with the proper constitutional weight. Neither court did fail to recognise that the complainant’s interest in information was protected as a fundamental right under Article 2.1 in conjunction with Article 1 of the Basic Law, and could only be limited following a weighing against opposing interests. In their weighing, however, the courts disregarded, or did not take sufficient account of, constitutionally relevant aspects both concerning the weight of the complainant’s interest in information, and the significance of the opposing interests.

The particularity of case at hand is that what is at issue is not a doctor-patient relationship under private law, but rather the scope of the right to information of a person who has been placed in detention at a psychiatric hospital. The person in forensic detention cannot choose their doctor or other providers of treatment freely. In light of this, a detainee’s right of self-determination is affected much more strongly by the refusal of access to major parts of their own medical files than would be the case if this were a private-law treatment relationship, where the person concerned may exercise their right of self-determination by withdrawing from treatment.

In an area, such as forensic detention, that is marked by a particularly strong power imbalance, the fundamental rights of the person concerned are, as a matter of course, particularly vulnerable. This also true with respect to the keeping of files and access to these. The file entries can impact everyday life in psychiatric detention in many ways. File entries remain available as a substantive part of the factual basis upon which future decisions on forensic or correctional detention are made. They play a considerable part in shaping the everyday life of the person in detention and also their prospects of being granted individual freedoms or regaining their complete freedom. Against this background, there is therefore a particularly strong constitutionally protected interest in viewing one’s files in the context of psychiatric detention.

Access to the information contained in medical files is also significant for the effectiveness of legal protection in matters related to forensic detention.

The particular constitutional significance to be attributed to a detainee’s interest in their medical information must be weighed against other competing interests. Among these are any confidentiality interests a person providing treatment might have in respect of their entries in the files of a person in forensic detention, as well as the conceivable negative effects of increased access to medical files on a treatment provider’s conduct relating to documentation or on the detained person’s behaviour itself. The various interests that must be taken into account must be carefully sought out and examined; generalised concerns that are not based on any substantiated factual basis are not sufficient. Furthermore, it is necessary to clarify the specific purpose of medical files in forensic detention and the resulting professional documentation obligations. Without such a clarification it is impossible to substantively assess and evaluate the effects of comprehensive access to medical files.