The Constitutional Tribunal has decided a case involving the display of reasons of a disability in disability certificates, which was worked by the Helsinki Foundation. The Tribunal declared the challenged provisions unconstitutional.
Case of T.
Let us remind our readers that the case concerned T., a man who challenged his disability certificate in court, requesting the document to be amended by the deletion of a description of causes of his disability. T. argued that the disclosure of this sensitive information had been a disproportionate interference with his right to privacy and exposed him to the risk of unfair treatment at the workplace. The courts that reviewed T.’s case dismissed his complaints. According to T. provisions of a relevant regulation requiring the disclosure of such information are incompatible with the Constitution.
Judgment of Constitutional Tribunal
The Constitutional Tribunal held that the challenged provisions that require the display of a disability code denoting a mental condition in a disability certificate are unconstitutional because they violate the right to privacy. According to the Tribunal, this type of information can be stigmatising. However, a key criticism raised by the Constitutional Tribunal towards the challenged regulation was that a law governing this matter should be given statutory footing rather than to appear in a piece of secondary legislation. This conclusion was drawn based on an overarching legal principle, according to which any disclosure or collection of personal data and interferences in privacy should be governed by a statute.
Aftermath of judgment
As soon as the Tribunal’s judgment is published, it will become illegal to enter disability code 02-P in disability certificates. At the same time, the Tribunal noted that it was unable to determine if other codes, which refer to other categories of health conditions, can or cannot be lawfully used. Despite this inability, which results from procedural constraints, the Tribunal speculated that the provisions applicable to the remaining codes are equally likely to be unconstitutional and argued that they seem to be covered by the same requirement of a statutory regulation. The judgment is final.
HFHR’s involvement
“We are satisfied with the judgment of the Constitutional Tribunal because the HFHR has frequently warned that disclosures of sensitive information about the cause of a disability in disability certificates constitutes an excessive interference with the privacy of persons with disabilities and exposes them to the risk of improper treatment. Persons with mental disorders seem to be particularly prone to this risk”, Marcin Szwed, a lawyer working for the HFHR comments on the Constitutional Tribunal’s ruling.
The Foundation has reached out to the Polish Psychiatric Society, which also called the regulation’s provisions unconstitutional and suggested that they should be replaced by other measures which represent lesser interference with employees’ privacy. Moreover, in August 2017, the HFHR appealed to the Chair of the Interdepartmental Team for the Development of a System of Disability and Occupational Disability Assessment, urging her to include changes to the rules of designing the causes of disability in disability certificates in a reform proposal that was at the time in development.
The complainant was represented pro bono by Mr Mikołaj Pietrzak, Mr Paweł Osik and Ms Małgorzata Mączka-Pacholak, attorneys of Pietrzak Sidor & Wspólnicy. The Commissioner for Human Rights has also joined the case.
