Dismissal following breach of the prohibition against unauthorized access to patient records under section 21 a of the Health Personnel Act

A 43-year-old healthcare worker was dismissed from her position after accessing a patient's medical records without a work-related need, in violation of Section 21 a of the Norwegian Health Personnel Act. The healthcare worker had a conflict-ridden relationship with the patient and exchanged text messages with her after the breach was discovered. The employee argued that there were insufficient grounds for dismissal and brought the matter before the courts.

The Norwegian Board of Health Supervision (Helsetilsynet) issued the healthcare worker with a formal warning as a consequence of the breach of Section 21 a. This raised the question of what significance a supervisory authority’s decision should have when assessing, under employment law, the consequences that a statutory violation should have for the employment relationship.

The Supreme Court held that the dismissal satisfied the requirements of Section 15-7(1) of the Norwegian Working Environment Act. The breach of Section 21 a of the Health Personnel Act was serious because individuals in need of healthcare services must be able to trust that no one other than those with a legitimate professional need will have access to their health information. This protection is necessary to ensure that patients provide complete and accurate information about their health, thereby enabling appropriate medical treatment. The fact that there was an ongoing conflict between the healthcare worker and the patient, combined with the exchange of text messages following the breach, made the misconduct more serious. Taken as a whole, there were legitimate and compelling grounds for dismissal, and a balancing of the interests of the employee and the employer did not lead to the conclusion that the dismissal was disproportionate.

With regard to the relationship between the supervisory decision and the employment-law assessment, the Supreme Court stated that the employer’s response to breaches of the Health Personnel Act and the supervisory proceedings conducted by the Norwegian Board of Health Supervision operate independently of one another. A supervisory decision does not constitute a central premise for the employment-law assessment, and an employer is not required to await the outcome of any supervisory proceedings before deciding upon and implementing employment-related sanctions. Nevertheless, a decision by the Norwegian Board of Health Supervision is not without relevance when assessing whether a breach of the Health Personnel Act justifies dismissal. Such decisions may provide some guidance regarding the seriousness of the breach, viewed in light of the interests protected by the supervisory regime.

The judgment provides guidance on when a breach of Section 21 a of the Health Personnel Act may constitute valid grounds for dismissal. It also clarifies the relationship between decisions issued by the Norwegian Board of Health Supervision and an employer’s assessment of whether a statutory breach should have consequences for the employment relationship.

Source: Supreme Court