Under French law, the principle of medical confidentiality protects all information about a patient that comes to the knowledge of healthcare staff. The Court of Cassation has clarified the conditions under which an employee may nevertheless produce such documents in court.
The rule is that the production of documents covered by medical secret may only be justified where it is indispensable to the exercise of the rights of the defence and proportionate to the aim pursued.
In this case, two logistical service agents working in a residential care home for the elderly (EHPAD) had brought claims for reclassification of their roles to nursing assistants. As evidence of the actual nature of their work, they produced extracts from the establishment’s nursing journal, a document covered by the principle of medical confidentiality. They redacted the residents’ names, and the document did not include the establishment’s name (although room numbers remained visible to demonstrate that several different patients were involved).
When the employees refused to withdraw the document from the proceedings, they were dismissed for serious misconduct. The Court of Cassation upheld the appeal court’s finding that the dismissal was without real and serious grounds: producing the document was indispensable, given that the witness statements provided by the employees were contested by the employer, and proportionate, given the redaction of names.
An employee with access to confidential documents in the course of their duties may exceptionally produce them in court, but only where strictly necessary and where the intrusion on confidentiality is reduced to the minimum.
