Which right shall prevail in case conflict arises between right to health and right to Privacy???

 

Healthcare industry is based on fiduciary relation between healthcare providers or Doctor and patients. Patient’s confidentiality and the protection of privacy is the foundation of the doctor-patient relationship. This fiduciary relationship between healthcare providers or Doctor and patients is established through the Indian Medical Council Act of 1952. Section 20(A) of the Act provides the code of ethics for the doctors to follow in their profession.  The concept of Medical confidentiality or privacy provides that every healthcare provider shall maintain all the information of patient safe, received from the patient during the course of the treatment. In healthcare sector privacy includes different aspects like informational privacy, physical privacy, associational privacy, proprietary privacy & decisional privacy. Therefore in right to privacy or confidentiality of individual, personal and medical information is kept confidential between him, the doctor, physician, healthcare or Health Insurance Company. In medical profession patient’s right to confidentiality is protected under numbers of legislations and constitution (Article 21) as well.

In some circumstances, legal provisions related to privacy, confidentiality and secrecy are often superseded by Public Interest deliberation. Indian jurisprudence also recognized the right to privacy and fabricated within legislation but it is often overruled prima facie when public interest of mass is involved keeping in mind the goal of a social welfare State set in the preamble of the constitution of India. The principles of utilitarian do not allow individual interest to at any point surpass the interest of the masses.

Right to privacy and confidentiality is not absolute under the healthcare sector because if the doctors or healthcare providers start keeping all health records a secret or confidential, despite knowing the fact that if such information is not communicated to the public in time then it may result in the spread of a dangerous disease from his patient such as HIV/AIDS, COVID 19 etc. Therefore, sometimes in the interest for the public good, the patient’s data has to be communicated.

As in the case of Mr. X v. Hospital Z, Supreme Court of India, blood sample report of the patient was found HIV positive by doctor during testing. The hospital authorities revealed this information to his family, without his consent, to protect the health of other persons. His family members informed his fiancée. His marriage was called off by her fiancée. Due to which the patient had to leave his place of work and also had to shift to a new city as he was highly criticised and was shunned by the community. As a result, the patient approached the court to claim damages against the Hospital’s act. He asserted that the Doctor had illegally disclosed his medical information without his consent and had also breached his duty to keep the medical information of a patient’s confidential. He further contended that, in the medical profession, the ‘duty of care’ is applicable and it includes the ‘duty of confidentiality’ and since the duty was violated or breached, the hospital/ doctor was liable to pay for the damages caused. Doctor has taken plea that he done this in public interest. The Court said that the girl’s right to be informed or right to health will override the Patient’s right to confidentiality. As a result, the doctors were held not guilty and the Court also held that the duty to maintain secrecy in the doctor-patient relationship is not absolute and can be broken for the public good or in the interest of health of other person. Therefore in a conflict between the individual’s privacy right and the public’s right to health in dealing with the cases of HIV-AIDS, the Roman Law principle 'Salus Populi est Suprema' (respect and regard to the public wealth is the highest law of the country) applies when there is a necessity

 

In the case of Radiological & Imaging Association v. Union of India the circular of the DM was challenged which required that the Radiologist and Sonologist should submit the on-line form under the PCPNDT Rules and also to install the SIOB (silent observer) for all the sonography machines, as a part of `save the baby’ campaign for improving sex ratio in the district. It was challenged this on the grounds that it violates the privacy of their patients. The Bombay High Court held that the images are stored in the silent observer and are not transmitted online to any server and only after the request of the DM / DC/ surgeon, in the presence of the concerned radiologist/ sonologist/ doctor in-charge of the Ultrasound Clinic, the silent observer will be opened. It was further observed that the right .to privacy must be restricted by the public interest and the use of a silent observer system on a sonograph is a obligatory safeguards or protection and it does not violate any privacy rights as the declining sex ratio of the country was considered a compelling public interest that could override the right to privacy. 

There are certain statutory situations where disclosure of personal health information is permitted and does not amount to a violation of privacy, for example:

·         On Court orders the patient  consented  for physical and mental examination by a doctors or;

·         On the call of  public health and safety or;

·         When the patient himself consented in writing or;

·         On the request of  the parents or the legal guardian of the patient where the patient minor or mentally disabled ; and

·         During referral,

·         on a written requisition by the court or by the police,

·         Disease registration,

·         Communicable disease investigations,

·         Vaccination studies, etc.

The privacy or confidentiality of information about the patient in healthcare industry is the supreme priority which has to be maintained by any healthcare provider. On the other side right to health is also there and that should be respected. But right to confidentiality is not absolute right, if right to health is in risk, it will prevail. We can take example of Epidemic cases, pandemic case- like COVID 19/ AIDS etc, where information has to reveal keeping in mind the public interest in large. Thus Right to privacy is not an absolute right and is subject to such stroke as may be lawfully taken for the prevention of crime or disorder or protection of health or protection of rights of others.”