The Hans India: New Delhi: Tuesday, May 22, 2018.
A
legislator’s disease is not his private information, when he is treated with
public money. Reports about disease of a person are generally part of his
privacy and need not be discussed with others unconcerned. The medical records
of a person are generally confidential as per the Indian Medical Council
(Professional Conduct, Etiquette and Ethics) Regulations 2002 framed under the
provisions of the Indian Medical Council Act, 1956. These provisions would be
inconsistent with the proviso to Section 8(1)(j) of the Right to Information
Act and the Right to Information Act would, therefore, prevail over the said
Regulations (AIR 2007 Bom 121).
Of course,
doctors need to know it and diagnostic technicians have to analyse the reports.
However, they have an obligation to keep such information in confidence and not
to disclose it just like that. The Hippocratic Oath of doctors imposes such an
ethical binding. But there are several circumstances where such information
needs to be revealed. Rights of others cannot be allowed to be jeopardized by
suppressing such disease-related information. supressio veri suggestio
falci i.e., ‘suppressing truth and
suggesting falsity’ is not acceptable. If public interest demands, any personal
information like details of disease need to be shared.
When public
money is spent on treating disease of a public servant, the information
relating to that treatment and its cost have to be revealed. In Surupsingh Hrya Naik vs State Of
Maharashtra (decided on 23 March, 2007, AIR 2007 Bom 121), a private citizen
sought the medical reports of Naik, legislator, who was convicted for contempt
of court. It was held that it was in public interest to know why a convict was
allowed to stay in an air-conditioned comfort of the hospital and there had
been intensive questioning about this aspect in the media and the people’s
mind.
Medical
records of brother
Naresh sought
medical report of his deceased brother Rampal under RTI Act. He quoted an
earlier order of CIC directing disclosure of medical reports of
patient-applicant who alleged that she was deliberately hospitalised to
terrorise her and certify as mentally ill (Ms. Nisha Priya Bhatia Vs. Institute
of HB&AS, GNCTD 24072014 [CIC/AD/A/2013/001681SA]).
IHBAS claimed
that information about her condition was obtained from her husband and various
other sources, and hence that information was held in fiduciary capacity by the
doctors. IHBAS also invoked 8(1)(h) as
departmental inquiry is pending. PIO also used S 8(1)(e) and (d) to deny. PIO
did not explain how the inquiry and the patient’s medical record are connected
and how the disclosure impedes it. He
also refused to give details of charge or allegation and status of inquiry. FAA
upheld the refusal. 8(1)(e) “fiduciary’ clause cannot be invoked. 8(1) (d)
‘commercial confidence’ or IPR has no place.
The CIC in
Shri Naresh Kumar Vs. BJRM Hospital (CIC/DS/C/2013/900427
SA,https://indiankanoon.org/doc/ 97464229/), GNCTD, Delhi [on 23 September,
2014] directed hospital to provide the records to patient within 72 hours
(Rules under Medical Council Act), provide the records to his near relatives if
he is deceased or unable to receive them, and protect them from other
unconcerned persons as per Hippocratic oath, based on the legal principle that
the Medical Records have to be shared with patients under Section 2(f) RTI
Act.
The primary
objective of the medical profession is the alleviation of human sufferings and
relieving them from pain and disease. The cherished ideals of the medical
profession imply that the responsibilities of the medical practitioner extend
not only to the individual, but also to the community as a whole.
Prabhat
Kumar case:
Duty to serve
Prabhat Kumar’s father was admitted into the hospital with the complaint of
constipation, he was kept in the ICU. Prabhat spent nearly Rs 18 lakh on his
father’s treatment in a private Hospital, and in spite of that he expired.
Prabhat’s request for record of treatment of his father was denied claiming
that private hospital was not a public authority.
Prabhat
Kumar, being son of that patient, is party to the contract and also a consumer
besides being a victim of treatment, hence claimed that he has right to know
the details of diagnosis, treatment and the prescriptions. He asked the
regulatory i,e., the Department of Health to procure the information for him.
The hospital is contractually bound to supply, having received a consideration
(payment) from the deceased’s family.
The department has a duty to enforce the Medical Council Act and to help
the deceased’s family, when their rights are being violated by a private or
public hospital.
Salmond defined:
'RIGHT is an interest recognized and protected by moral or legal rules. It is
an interest the violation of which would be a legal wrong. Respect for such
interest would be a legal duty. An interest becomes the subject of a legal
right, it has to have not merely legal protection but also legal recognition,
the elements of a "LEGAL RIGHT" are that the 'right' is vested in a
person and is available against a person who is under a corresponding
obligation and duty to respect that right and has to act or forbear from acting
in a manner so as to prevent the violation of the right. If, therefore, there
is & legal right vested in a person, the latter can seek its protection
against a person who is bound by a corresponding duty not to violate that
right.”
Hippocratic
Oath as such is not enforceable in a court of law as it has no statutory force.
Medical information about a person is protected by the Code of Professional
Conduct made by the Medical Council of India under Section 33(m) read with
Section 20A of the Act. But this protection is not absolute.
The Patient
has a right to his/her medical record and Respondent Hospital Authorities have
a duty to provide the same under Right to Information Act, 2005, Consumer
Protection Act, 1986, The Medical Council Act as per world medical ethics.
The
Information Commission in Prabhat Kumar case directed officerincharge of
administration of the Fortis Hospital or any other responsible person having
authority and knowledge about the case of the father of the appellant to
furnish:
a)the
certified copies of entire medical record including a note explaining the cause
of death of the father of the appellant;
b)the
certified copies of documents based on which the causes were ascertained; and
c)the
certified copies of bills and receipts of payments made by or for the father of
the appellant free of cost to the appellant. ……
CIC
recommendation
The
Commission recommended to the Government of India, states and Union
Territories, besides the respondent authority in this case, to take necessary
steps to enforce the right to information, i.e., forcing the private hospitals
to give medical records of the patients on day-to-day basis, because this daily
disclosure will prevent undesirable practices of altering records after damage
caused to patient.
Forcing the
private hospitals to provide dailywise medical records will also act as a
check on some hospitals from resorting to extortionist, inhuman and ruthless
business of prescribing unnecessary diagnostic tests, unnecessary surgical
operations, caesarean deliveries,
unwarranted angioplasties,
inserting stents, without need, or of substandard nature, or putting low
quality stent while collecting price of high quality stent, and several such
malpractices amounting to medical terrorism, etc. They should not be allowed to
such malpractices with all impunity and get away without
any legal consequences
as if there
is an absolute
immunity. The Government, Medical
Council of India and the health regulatory has to see that license to practice medicine
will not become license to kill and extort and come to the rescue of helpless
patients.”
The
Commission recommended that the Union government and the Delhi government to
take this as undesirable example
of defiance of
private hospitals and
of their indifference towards
lives, health and rights of the patients from who they fleece huge amounts of
money, to come up with a strict mechanism of enforcing the rights of the
patients as per law. The Commission also recommended to the governments to take
note that right to information of medical records of patient is equal against
both public and private hospitals and any attempt to ignore enforcement of this
right against private hospital will amount to practice of discrimination in
violation of Article 14 of the Constitution (Prabhat Kumar v GNCTD,
CIC/SA/A/2014/000004).