- The Thurgau Administrative Court granted partial access to the medical history: Only medically mediated disclosure limited to information necessary to clarify an alleged treatment error leading to death.
- The right to information on data protection (Art. 8 FADP) does not pass to heirs; the complainant cannot derive comprehensive access or release from professional secrecy from this.
The brother of a person who died as a result of complications from medical treatment requested information from the hospital in question. However, the competent authority, the Department of Finance and Social Affairs, refused to release him from the obligation of medical secrecy (StGB 321 No. 2). The Administrative Court of the Canton of Thurgau rejected the appeal against this decision (Decision of the Administrative Court VG.2015.126/E of November 18, 2015) well, because it weighted the interest in information about the treatment higher than the lower court. However, the disclosure had to be limited to what was necessary and had to be made vicariously through a physician:
6.4 With regard to the interests of the deceased, however, it cannot be assumed in principle that he, even if he was closely associated with his brother as well as with his life partner and their common son, would have permitted solely on the basis of this circumstance that his medical history be made fully and without restriction accessible to his brother or his immediate family (cf. in this regard also the judgment of the Federal Supreme Court of 26 April 1995 in Pra 85 [1996] No. 94 E. 3). However, it must be assumed that the clarification of the question of whether he died due to incorrect treatment is in the presumed interest of the deceased person. The weighing of the interests in the present case therefore only allows for a Partial disclosure of medical history with regard to those data that are directly related to the death and are necessary to assess whether a treatment error at the K led to the death of C sel. However, this precludes the complainant from inspecting the complete medical records. The same also applies to his attorney, who cannot at the same time also protect the conflicting interests of the deceased. However, the conflict between the interest in inspection and the interest in secrecy can be resolved by granting the requested inspection of the medical history to a doctor whom the complainant can appoint himself, but who must have a professional license to practice in Switzerland so that the professional and personal qualifications are ensured. Art. 8 para. 3 FADP also provides for the communication of medical data to the data subject via a physician. The latter may only inform the complainant about the content of the medical history to the extent that the interest in inspection requires, which in the present case is limited to the question of whether a treatment error led to the death of C sel. (cf. also the decision of the Schaffhausen Higher Court of 22 December 1989, ZBl 91/1990 p. 364 ff.). The appeal is therefore to be approved in the sense of the contingent application. The medical records of C sel. are to be handed over to a mediating trusted medical person on behalf of the complainant.
With reference to the right to information under Art. 8 DPA, which was also invoked by the brother, the VGer TG held here (as also the Insurance Court TG in the decision VV.2015.142/E of 1 July 2015) states that the right to information does not pass to the heirs and, in accordance with the Case law of the Federal Supreme CourtThe court ruled that the objective of the proceedings, namely the inspection of medical records, was not in line with the right to information:
4 The complainant relies first of all on Art. 1 para. 7 VDSG for the release from medical professional secrecy. However, this is contradicted by the fact that the right to information under data protection law does not pass to the heirs. As the Federal Court stated in BGE 140 V 464 E. 4.2, the right to information under Art. 8 FADP is intended to enable the data subject to exercise his or her other data protection rights.. This also applies to Art. 1 VDSG, which regulates the modalities of the right to information. Thus, the objective in the present proceedings is also not consistent with the corresponding provisions of the DPA and the VDSGTherefore, the complainant cannot derive anything in his favor from the right to information under data protection law. In this respect, it can be left open whether there is any legal basis at all for Art. 1 (7) FADP, which Urs Maurer-Lambrou and Simon Kunz clearly deny in the Basler Kommentar, Datenschutzgesetz/Öffentlichkeitsgesetz, 3rd ed., Basel 2014, in para. 6 on Art. 2 FADP.