The European Commission of Human Rights sitting in private on
1 December 1986 the following members being present:

                  MM. C.A. NØRGAARD, President
                      E. BUSUTTIL
                      G. JÖRUNDSSON
                      S. TRECHSEL
                      B. KIERNAN
                      A.S. GÖZÜBÜYÜK
                      A. WEITZEL
                      J.C. SOYER
                      H.G. SCHERMERS
                      H. DANELIUS
                      G. BATLINER
                  Mrs G.H. THUNE
                  Sir Basil HALL
                   Mr F. MARTINEZ

                   Mr J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 (art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 October 1984 by
J.G. against the United Kingdom and registered on 23 October 1985
under file No. 11820/85;

Having regard to the report provided for in Rule 40 of the Rules of
Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a United Kingdom citizen, was born in 1938 and lives in
and works as a teacher employed by a local education authority (an
L.E.A.) in South West England.

The facts, as submitted by the parties, may be summarised as follows:

The applicant has worked as a teacher for her L.E.A. since 1967.  When
first employed, she was medically examined and given to understand
that any query as to her health would be referred to an independent
doctor.

As a result of a change in procedures for certification of sick notes
(notes for employers to confirm an employee's absence from work
through illness), a circular was distributed in September 1982 by the
applicant's employer.  The circular, which was sent to all L.E.A.
employees, provided as follows:

" ...

In short employees must:-

First day of absence:   Report to supervising officer by
                            telephone*

Fourth day of absence:  Report to supervising officer by
                            telephone* (Complete DHSS claim
                            form if claiming benefit and
                            forward direct to DHSS).

---------------
*  Or by quickest possible means if a telephone is unavailable.
_______________

Absences of eight days
or more                   Produce to supervising officer
                            medical certificate from doctor/
                            hospital on eighth day and
                            further certificates if
                            necessary to cover full period
                            of absence subsequent to first
                            seven days.

On Return to Work           Complete and sign Employee
after an absence of         Statement for the full
four days or more           period of absence.

Employees are to note that;-

(i)     The Authority reserves the right to review an
        employee's suitability on health grounds for
        specific job requirements and/or investigate
        the reason for absence stated on the Employee
        Statement form or medical certificate.  This
        may involve referral to the Occupational
        Health Physician for a medical report and/or
        consultation with the employee's own doctor
        or any doctor attending him/her.

(ii)    Disciplinary action in accordance with the
        existing disciplinary procedures will be taken
        against employees who knowlingly make false
        declarations on the Employee Statement Form
        or fail to comply with the procedure.

 ..."

The circular was confirmed, with specific reference to teachers, by a
letter from the L.E.A. Director of Education in November 1982.

The applicant claims that as a result of the new policy, her medical
record, a private confidential record between her and her doctor, can
now be disclosed to her employer without her consent or, indeed, her
knowledge.

A teacher's failure to agree to the disclosure of medical records
could allegedly lead to disciplinary sanctions.

On 30 May 1986, pursuant to Rule 40 para. 1 of the Commission's Rules
of Procedure, the Government informed the Commission as follows:

Teachers are employed by L.E.A.s and conditions of service are
negotiated nationally between associations of L.E.A.s and the
teachers' unions.  Central Government is not involved.  L.E.A.s are
not statutorily bound to accept the agreements reached after such
negotiations, but by custom they are expected to incorporate them in
their contracts of service with individual teachers.  The Circular of
September 1982 from the applicant's employer/L.E.A. resulted from one
of such agreements.  The extent to which, and the manner in which, any
employer may unilaterally amend the terms of a contract of service
will depend upon the terms of the original contract.  In the
applicant's case there was no express term enabling the authority to
amend their contract with her.  Teachers benefit from normal
employment protection law, in particular the law relating to written
contracts of employment (Sections 1 and 4 of the Employment Protection
(Consolidation) Act 1978).

Both hospital medical records and those of general medical
practitioners are deemed, in law, to be owned by the Secretary of
State for Health and Social Security.  However, regardless of the
strict legal position on ownership of records, disclosure of medical
records is normally left to professional medical ethics.  According to
the doctors' code of professional conduct, "It is a doctor's duty ....
strictly to observe the rule of professional secrecy by refraining
from disclosing voluntarily to any third party information about a
patient which he has learnt directly or indirectly in his professional
capacity as a registered medical practitioner."

The relationship of confidentiality between doctor and patient is
respected in practice and medical records may only be disclosed in
exceptional circumstances:  by virtue of a statutory requirement or a
decision of a court of law, for essential management functions of the
health authority, health research and the prevention, detection and
prosecution of crime, or in the interests of national security or
public health.

As far as it has been possible to ascertain, there are no statutory
provisions requiring medical records to be sent to local authority
employers.  This would only occur if the patient authorised
disclosure.  In the absence of such statutory provision, any term in
the contract between a teacher and his employer requiring disclosure
would be unenforceable against doctors and the health authorities.
There does not appear to be any provision of social security
legislation giving employers the right of access to medical records.
For statutory sick pay purposes an employer may require production of
a medical certificate, but that is all.  In the wider sphere the
Department of Health and Social Security often obtains medical
reports, extracts from hospital case notes, etc., for the purpose of
determining claims to benefit, but only with the claimant's consent.

Even if an L.E.A. does request information of a doctor without consent
and/or knowledge of the patient, the information in the hands of the
doctor will be subject to the aforementioned rule of confidentiality
and will not be disclosed without the patient's consent.  If the
doctor declines to provide it, the Secretary of State presumably could
do so on the basis of his ownership of records.  He could direct
health authorities under Section 17 of the National Health Service Act
1977 to make records available, but it seems, in view of what has been
said above, that such a possibility is so unlikely as to be not worthy
of consideration.  The Education (Teachers) Regulations (SI 1982/106)
contain provisions governing the employment of teachers and, in
particular, provide that teachers shall not continue in relevant
employment unless they have the health or physical capacity therefor
(Regulation 9).  The Regulations set out the procedure to be followed
where it appears to the authority that the teacher may no longer have
the necessary health and physical capacity, but there is nothing in
the Regulations that requires doctors to disclose information, or
which would otherwise create a conflict for the doctor with the duty
of confidentiality outlined above.  Again information will only be
given where the patient consents.

As regards the applicant's own situation, no information contained in
the applicant's medical records, held by her general practitioner, has
been submitted to her employer.  In fact the only communications about
her health that the education department had, apart from her own
doctor's sickness certificates, were provided by her.  Enquiries have
not been made of the employer's occupational health doctor as to
whether he has been given information about the applicant by her
doctor, but -

    i.  the practice in the applicant's L.E.A. is that such
        information would not be given without the patient's
        consent, and

   ii.  in fact no such information was passed by the occupational
        health doctor to the authority.

In response to this information, the applicant maintains her claim
that her employer may still have access to her medical records. Even
if, in practice, because of medical ethics, records are not normally
disclosed, the L.E.A.'s right of access remains.

COMPLAINTS

The applicant complains that the right of local education authorities
to have access to their teacher/employees' medical records (under
threat of disciplinary actions) constitutes a breach of Article 8
(art. 8) of the Convention.  She objects to this right of access being
imposed upon her as a unilateral change in her contract, whereas she
was originally employed on the understanding that medical queries
would be referred to an independent doctor.  This change in her
contract (which she considers to be a change in the law) undermines
the relationship of confidentiality she has with her general medical
practitioner. Although some parents may approve of such interference
with teachers' records, it is a dangerous precedent and threat to
other professions in positions of trust, or caring for others.  The
present situation goes beyond what is necessary to secure other
people's well-being at the expense of teachers' individual liberty.

THE LAW

The applicant complains of a unilateral change in her contract of
employment as a teacher which, she claims, gives her employer, a local
education authority, a right of access to her private medical records,
held by her general medical practitioner.  She alleges that this right
of access is enforced by the possibility of imposing disciplinary
sanctions against her, should she oppose it.  The applicant thereby
claims to be a victim of a violation of Article 8 (art. 8) of the
Convention which ensures the right to respect for private and family
life, home and correspondence, subject to certain limited exceptions.

However, the Commission is not required to decide whether or not the
facts alleged by the applicant disclose any appearance of a violation
of this provision as, under Article 26 (art. 26) of the Convention, it
may only deal with a matter after all domestic remedies have been
exhausted according to the generally recognised rules of international
law.

In the present case the Commission notes that the applicant is
protected by the general principles of employment and contract law and
that there is nothing in her contract of service with her employer
permitting a unilateral change in her conditions of service.  Thus any
changes in the terms of her contract of employment must be agreed
between the parties or effected by the termination of the old contract
and agreement on a new one.  The applicant has not instituted
proceedings for an injunction or a declaration, with a claim for
breach of contract, concerning the possible change in the conditions
of her service imposed without her consent, or concerning any concrete
dispute over her employer's access to her private medical records
(cf. Keir and Williams v. the County Council of Hereford and Worcester
(1985 I.R.L.R. 505 C.A.)).

In these circumstances the Commission finds that the applicant has not
exhausted the remedies available to her under English law. Moreover,
an examination of the case does not disclose the existence of any
special circumstances which might absolve the applicant, according to
the generally recognised rules of international law, from exhausting
the domestic remedies at her disposal.

It follows that the applicant has not complied with the condition as
to the exhaustion of domestic remedies and her application must in
this respect be rejected under Articles 26 and 27 para. 3
(art. 26, art. 27-3) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission           President of the Commission

          (J. RAYMOND)                               (C.A. NØRGAARD)