The Court of Appeal in social law matters ("Cour du Travail" / "Arbeidshof") recently had the opportunity to articulate its views on the right to access personal data held in the filing system of a medical practitioner in the context of 'controlling medicine' ("controlegeneeskunde" / "médicine de contrôle")[1].

When there are medical data being processed by a medical practitioner, Belgian law offers the data subject two distinct options to access their medical data. The data subject may choose to exercise their right to access pursuant to Article 10 of the Belgian Law of 8 December 1992 ("the Data Protection Act"). Alternatively, the data subject may choose to exercise a distinct right to access offered under the Law of 22 August 2002 on Patient's Rights.

Concerning this latter right to access, some hold the view that the right to access only relates to medical practitioners in the field of curative medicine, and not to 'controlling medicine' in the context of insurance and social security activities, i.e. medical practitioners that are appointed to verify and control the degree of invalidity caused by an accident or work injury. The Court of Appeal followed a 2005 recommendation by the Federal Ombudsman for Patient Rights that the legislation be clarified to ensure that "controlling medicine" is included in this right to access.

It is also interesting to note that the Court awarded (limited) damages to the data subject to compensate for the moral damage caused by the repeated refusal to grant access to the filing system.[2] In the past, courts generally limited compensation to a symbolic amount of €1. The decision of the Court appears to confirm a trend of higher (but still limited) compensation for moral damages resulting from a breach of data protection legislation.