Forensic psychiatric experts could not obtain confidential health information

The District Court had decided that a forensic psychiatric examination should be conducted on a person who was charged, among other things, with aggravated bodily harm. The experts were given a standard mandate, which includes examining issues related to the accountability of the person charged and determining whether preventive detention should be imposed as a sentence.

The accused did not consent to the waiver of confidentiality. Section 168 a of the Criminal Procedure Act authorises the experts to obtain confidential health information without such consent in cases where the outcome may depend on whether or not the person charged is accountable. 

The Supreme Court stated that a decision which, without further evidence, merely consists of the experts being given a standard mandate, does not in itself provide a sufficient basis to obtain confidential information under section 168a of the Criminal Procedure Act. There must be genuine doubt about the accountability. 

In the Supreme Court's view, the Court of Appeal, which found that the experts could obtain confidential health information, had based its assessment on a misinterpretation of the provision. The Supreme Court also found that the experts could not obtain confidential information from Nav and the child welfare services. The Supreme Court's interpretation was that "information related to the health of the person charged" means information that is confidential under the Health Personnel Act. Section 168 a of the Criminal Procedure Act does not provide a legal basis to obtain information other than this.

The Court of Appeal's ruling was subsequently reviewed. One justice dissented, arguing that the experts could obtain health information under other statutory rules on confidentiality than only those in the Health Personnel Act, and that the Act also permits obtaining information from Nav and the child welfare services.

Read the order from the Supreme Court (Norwegian only) (PDF)

Area of law: Criminal procedure

Key paragraphs: 50, 59–62 

Justices: Falkanger, Bull, Ringnes, Stenvik, Lund