Freedom of Privacy in Medial Cases: Indian Scenario
From trafficking unapproved tranquilize medicines to surveying the impact of various medications on patients, the capacity to automatically process any information given by the patients has proven to be instrumental service in the healthcare sector all over the globe.
It has additionally turned out to be imperative for medicinal services specialist to consider patient privacy and information security, particularly where such data has deriding outcomes. Medical privacy is very crucial for establishing fiduciary relationship between patient and the doctor. Fiduciary derives from the Latin word for “confidence” or “trust”. The obligation of trust between the patient and the doctor is essential to the demonstrative and restorative process. It forms the basis for the physician-patient relationship. All together for the doctor to make exact findings and give ideal treatment proposals, the patient must have the capacity to impart all significant data around an ailment or injury.1
A right to sexual privacy enables individuals to acquire and use contraceptives without family, community or legal sanctions. Physicians are obliged to refrain from divulging confidential information. This duty is based on accepted codes of professional ethics, which recognize the special nature of physician-patient relationships.
Medical privacy involves the confidentiality of patient-provider encounters, along with the secrecy and security of information memorialized in physical, electronic and graphic records created as a consequence of patient-provider encounters. Privacy includes confining data to people having a place with an arrangement of particularly approved beneficiaries. Each individual in the medicinal field is required to take the Hippocratic vow, which incorporates the obligation of the parental figure to ‘keep mystery’ and ‘never uncover’ ‘all that may go to his/her insight. In other words, right to medical privacy has to be balanced with right to healthy life of another whose right will be affected unless such information is disclosed to her/him.
Not only Hippocratic Oath or any legal provision, the general moral principal is also involved while establishing the right to privacy among patient and the doctor. There is a common belief that no one should hide anything from his/her lawyer and doctor.2 Despite these practices, right to privacy is not absolute. Reporting of transmissible diseases, gunshot wounds, child abuse, and venereal disease may take precedence over the right to privacy. Interventions to hospitalize a person for psychiatric reasons and to prevent harm also have become exceptions to the general rule. Wigmore has stated that to justify privilege (legal protection to a confidential relationship):
(I) the communications must originate in a confidence that it will not be disclosed.
(2) Confidentiality must be essential to the satisfactory maintenance of the relationship.
(3) The relation must be one which the community believes should be fostered.
(4) The injury to the relationship from disclosure of the communication must be greater than the benefit gained for the correct disposition of the litigation.
Thus, an important point legally and perhaps generally is that the communications must originate in a confidential relationship. If there is no confidential relationship in the first place, then whether privacy should be respected in all ways or just in some becomes important.3
Situation in India
The privilege to protection in India has been adopted itself from basically two sources: the common law of torts and the constitutional law. In common law, a private action for damages for unlawful invasion of privacy is maintainable. Nonetheless, Venkata Challaih Commission has additionally prescribed Parliament to embed Article 21B which would oversee appropriate security to each individual living in India. Sadly, the Parliament has not sanctioned the same yet. Affected people have right of security, however accomplices of those people too is at health risk.
The partners of infected persons have an equally powerful claim of right to know or right to information.4 The privilege to know created from the social development of the mid 1900s. It was created under tort law that held that a man has an obligation of care toward his sexual accomplice. Under the tort law, the duty is a lawful commitment of certain norms towards others. This responsibility makes an obligation to disclose an STD to a sexual partner or to protect the partner from preventable health risks.
In Mr. X v. Hospital Z 5, the Supreme Court held that doctor-patient relationship though basically commercial, is professionally a matter of confidence and, therefore, doctors are morally and ethically bound to maintain confidentiality. In such a situation public disclosure of even true private facts may sometimes lead to the clash of one person’s right to be let alone with another person’s right to be informed.
In another case the Apex Court said that the hospital or doctor was open to reveal such information to persons related to the girl whom he intended to marry and she had a right to know about the HIV-positive status of the appellant. The Court also held that the appellant’s right was not affected in any manner in revealing his HIV-positive status to his relatives. In matrimonial cases the petitioner would always insist on medical examination. However, the Supreme Court went on to subordinate the right to marry of individuals with communicable venereal diseases, even when such marriage was based upon informed mutual consent.
The effect of the right to marriage being held a “suspended right” did not mean that individuals with communicable venereal diseases could not marry, but worse still, it meant that if the State enacted a law preventing them from marrying, it could not be subject to challenge under the fundamental right. It must also be noted that if at all a fundamental right is to be suspended; the suspension must be warranted by the Constitution and cannot be brought about by external considerations.
However, in Sharda v. Dharmpal 6, the Supreme Court considered the question of whether a party to a divorce proceeding could be compelled to take a medical examination. While acknowledging the importance of privacy and confidentiality, the Court found that the right to privacy was not absolute and a party could be asked to take a medical examination in a matrimonial proceeding.
Therefore, it can be concluded that right to privacy is an integral component governed under the purview of Article 21 of the Indian Constitution. Right to privacy in medical cases has been gaining prominence as the basic objective behind this right is to establish fiduciary relationship between a patient and a doctor. Medical privacy allows a person to suppress their medical records and other information, possibly because of fears that it might affect their insurance coverage or employment, or to avoid the mortification caused by revealing medical conditions or treatments. Medical information also helps in identifying one’s sexual inclinations or proclivity.
By Abhishek Singh and Khushboo Pareek, Damodaram Sanjivayya National Law University, Visakhapatnam