TRIBUNAL CONSTITUCIONAL Portugal

RULING Nº 368/02

25 of September of 2002

Headnotes:

The right to protection of privacy entails a duty to respect confidentiality, in other words a prohibition on obtaining information on the private life of others, including, of course, information relating to health. However, it is not an absolute right prevailing in all cases or in relation to all fields.

In the employment field, both the right to have one's heath safeguarded and the duty to preserve and foster health (Article 64.1 of the Constitution) sufficiently justify the worker's obligation to undergo all necessary and appropriate medical examinations to ensure - taking into account the nature of the work and the methods chosen for its performance, and always in accordance with reasonable criteria - that he or she does not present a risk to third parties. However, the nature and purpose of the medical examination must not be such as to render this obligation unreasonable, discriminatory or arbitrary.

The possibility of introducing a compulsory medical examination may conflict not only with the right to protection of privacy (to the extent that it requires access to information on the person's state of health), but also with general freedom of action itself. Article 26.1 of the Constitution explicitly recognises the right to free development of personality, which comprises individual autonomy and self-determination and guarantees everyone the freedom to develop their own life plan.

Summary:

The Attorney-General sought a finding of unconstitutionality, with general binding force, in respect of several provisions (contained in legislative Decree 26/94 of 1 February, amended by Act no. 7/95 of 29 March) concerning compulsory medical examinations to determine whether workers had the mental and physical aptitude required for their particular occupation and to ascertain the effects of working conditions on workers' health. In short, he argued that these provisions:

a. placed significant restrictions on the essential core of the right to protection of privacy;

b. created coercive machinery which could be used to subject workers to all examinations or tests deemed necessary by the "occupational physician", who enjoyed full discretion in the matter;

c. enabled the "occupational physician" (who was on the staff of the company employing the workers concerned) to create what was effectively a "databank" containing potentially detailed information on each worker's "state of health" without any control or supervision other than the general statement that this information was covered by professional secrecy; and enabled the "occupational physician", on the basis of the "medical" opinion relating to a worker's aptitude, to exert a decisive influence on the worker's occupational situation, without there being any appropriate safeguards which would make it possible to question that opinion.

He alleged that the provisions in question were therefore clearly inherently unconstitutional since, falling within the area of "rights, freedoms and guarantees", they were covered by the reservation relating to Parliament's legislative power. On this point, the Court found that, in view of Parliament's "supervisory function in relation to legislative decisions", the approval of an amending Act made it impossible to plead inherent unconstitutionality in the future, at least as regards the provisions contained in the Act and the provisions which Parliament wished to leave unchanged, or the provisions which, during the special parliamentary legislative procedure, were the subject of proposals for amendments which were rejected.

Secondly, the Attorney-General submitted that the two texts in question were unconstitutional in form as they fell within the scope of "labour legislation" and the right of the works committees and trade unions to participate in the preparation of these texts, in accordance with Article 54.5.b of the Constitution, had not been complied with. As the participation of workers' representative bodies in the drafting of Act 7/95 was a proven fact, the Court held that the fact that the preamble to the Act did not mention this was of no importance; moreover, even as regards the provisions which had not been amended by the Act, the works committees and trade unions had undoubtedly been sufficiently consulted on their retention. It might, however, be claimed that the question remained of the formal unconstitutionality of the provisions in question before publication of the Act. Nevertheless the Court decided not to consider that question as it was pointless to do so. As the provisions in question covered a very wide range of situations which were not controversial and which might be called into question in the event of a finding of unconstitutionality with general binding force, the Court limited the effects of this finding for reasons of legal certainty.

The Court then addressed important issues of substantive unconstitutionality. First of all, it dealt with the imposition on workers of an unlimited obligation to disclose their overall state of health and to undergo all medical examinations deemed necessary by the "occupational physician". This might entail a "clear, disproportionate and intolerable restriction" of one of the core elements of the right to the protection of privacy (secured by Article 26 of the Constitution) and, hence, a violation of Articles 18.2 and 18.3 of the Constitution, because systematic access to information on workers' health - not confined to "hazardous occupations" and strictly occupational diseases - entailed an excessive and disproportionate restriction of that individual right.

In the Court's view, the legal provision stipulating the obligation to undergo medical tests or examinations did not include forced physical submission to medical tests or examinations. If it did, that might conflict with the right to freedom and physical integrity. The Court recognised, however, that even if the carrying out of these medical tests or examinations presupposed the worker's agreement, in some cases it represented an obstacle to recruitment and, in others, a real legal obligation on which continued employment might even depend. However that may be, legally binding submission to medical tests or examinations - an intrusion in private life insofar as these tests or examinations were designed to collect data on health, which necessarily included information on private life - might, in some cases and under certain conditions, be permissible in view of the need to harmonise the right to protection of privacy with other legitimate rights or interests recognised by the Constitution (for example, the protection of public health or the administration of justice).

However, it also had to be determined whether the obligation to undergo a medical examination to ascertain "the effects of work and working conditions on the worker's health" in his or her own interest and even if he or she did not want it, was constitutionally admissible. Assessment of this issue should take into account the new version of Article 59.1.c of the Constitution, according to which workers were entitled to "safe and healthy working conditions". The question was therefore whether the state's obligation to legislate to ensure protection of workers' health could go so far as to oblige workers to undergo medical examinations to protect their own health, even when they were unwilling to do so, in other words, where important public interests or fundamental rights of third parties were not essentially at stake. The Court held that, in terms of the Constitution, the obligation to undergo a medical examination could be based on the need actually to ensure - in the case of the weakest workers, in particular "pregnant women and women after childbirth", "minors", "persons with disabilities" and those who "perform particularly strenuous work or work under insalubrious, toxic or dangerous conditions" - that work was done without risk to the worker him - or herself. In its decision, the Court bore in mind that the protection of workers and elimination of the harmful social consequences of failure to protect them were, from the historical point of view, the raison d'être of labour legislation. Medical examinations at regular intervals were consistent with the Constitution, but the Constitution set out that they should be precisely tailored to the aim sought to be achieved.

The effective creation of a databank containing information on the overall state of health of all workers in all companies was a violation of Article 35 of the Constitution for two reasons: first, the databank on workers' health was created within the company employing the workers; secondly, the law did not establish any safeguards in relation to collection and processing of the data in question and access to it, other than by merely "declaring" it to be confidential. The Court held that even if it might be acknowledged that the two conditions were partly met on the date of the application, that was no longer the case and that, as in other legal systems, any "occupational physician" who passed on to the employer information reflecting a medical diagnosis was guilty of violating professional secrecy. This meant that it was impossible to take the view that the text in question allowed a databank on workers' health to be set up within the company employing them.

Lastly, the system introduced might also entail an intolerable and disproportionate restriction of the right to work and the fundamental right to choose and engage in an occupation in accordance with Article 47 of the Constitution. The Court held, however, that a worker's inability to engage in a particular occupation or type of work for reasons related to his or her physical or mental health was necessarily included in the restrictions allowed under the Constitution - because they were "inherent in his or her own capacity"; hence, that restriction was not disproportionate.

In short, since the purpose of the medical examinations provided for under the legislation was solely to prevent occupational hazards and promote workers' health, the Court dismissed the application and ruled that the provisions in question were not unconstitutional.

Supplementary information:

The Court referred to the judgment of 23 May 1994 in which the Italian Constitutional Court declared a section of the AIDS prevention and control programme unconstitutional insofar as it did not provide for HIV screening tests for persons engaging in activities involving risks to the health of third parties (Raccolta Ufficiale delle Sentenze e Ordinanze della Corte Costituzionale, vol. CXI, 1994, p. 639). A commentary on this judgment by Nicola Recchia can be found in Giurisprudenza Costituzionale, year XL, 1995, volume 1, p. 559).

In support of its argument, the Court also referred to the case-law of the European Commission and Court of Human Rights, according to which compulsory tuberculosis screening tests are permissible on public health grounds (application no. 10435/83, Roger Acmane and others v. Belgium), as are the compulsory subjection of a notary to a psychiatric examination (Application no. 8909/80, P.G. v. Federal Republic of Germany) or, in the interests of crime prevention (Application no. 21132/93, Theodorus Albert Ivo Peters v. the Netherlands), the compulsory provision of a urine sample for analysis to test for drug use by prisoners.

The Court also took into consideration Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (published in the Official Journal of the European Communities, no. L 183/1, of 29 June 1989), and particular Article 14 which states that measures to "ensure that workers receive health surveillance appropriate to the health and safety risks they incur at work" (para. 1) shall be "such that each worker, if he so wishes, may receive health surveillance at regular intervals" (para. 2).