Dear FORUM,

Dr. Pradeep Kasar send two articles on this issue

a) Right to confidentiality vs human rights
b) Make HIV test before marriage mandatory: victims


a) Right to confidentiality vs human rights

Right to confidentiality is one of the essential rights of a
patient. However, there are certain exceptions to this rule wherein
confidentiality can be overridden and disclosure permitted.
Cited below is a recent Supreme Court ruling on this important
aspect (decided on 10/12/2002).

The appellant, after obtaining the Degree of MBBS in 1987 from
Jawaharlal Institute of Post Graduate Medical Education and
Research, Chandigarh and MD-Pharmacology Course, was in the Nagaland
State Service as assistant surgeon.

One Itokhu Yepthomi who was suffering from a disease which was
provisionally diagnosed as `Aortic Aneurysm' was advised to go to
the `Z' Hospital at Madras and the appellant was directed by the
government of Nagaland to accompany the said patient to Madras for
treatment.

The appellant was asked to donate blood for the latter. In August
1995, the appellant proposed marriage to one Ms.`Y' which was
accepted. But the marriage was called off on the grounds of a blood
test conducted at the `Z' hospital at Madras, where several tests
were conducted and he was found to be HIV(+).

Since the marriage had been settled but was subsequently called off,
several people including members of the appellant's family and
persons belonging to his community became aware of the appellant's
HIV(+) status.

This resulted in severe criticism of the appellant and he was
ostracised by the community.

The appellant then approached the National Consumer Disputes
Redressal Commission for damage against the `Z' Hospital, on the
ground that the information, which was required to be kept a secret
under medical ethics, was disclosed illegally and, therefore, the
Hospital `Z' were liable to pay damages.

The Commission dismissed the petition and also the application for
interim relief summarily, by an order dated 3rd July 1998, on the
ground that the appellant may seek his remedy in the civil court.
Learned counsel for the appellant has vehemently contended that the
principle of `Duty of Care' as applicable to persons in the medical
profession, includes the duty to maintain confidentiality and since
this duty was violated by the hospital `Z', they are liable in
damages to the appellant.

Duty to maintain confidentiality has its origin in the Hippocratic
oath, which is an ethical code.

The Hippocratic oath which is reproduced here says, "Whatever, in
connection with my professional practice, or not in connection with
it, I see or hear, in the life of men, which ought not to be spoken
of abored, I will not divulge, as reckoning this all such should be
kept secret."

The International Code of Medical Ethics has also been laid down as
under: "A physician shall preserve absolute confidentiality on all
he knows about his patient, even after his patient has died".
The Code of Medical Ethics which has been made by the Indian Medical
Council, provides as under:

"Do not disclose the secrets of a patient that have been learnt in
the exercise of your profession. Those may be disclosed only in a
court of law under orders of the presiding judge".

It is true that in the doctor-patient relationship, the most
important aspect is the doctor's duty of maintaining secrecy. A
doctor cannot disclose to a person, any information regarding his
patient, which he has gathered in the course of treatment, nor can
the doctor disclose to anyone else, the mode of treatment or the
advice given by him to the patient.

It is contended that the doctor's duty to maintain secrecy has a
correlative right vested in the patient that whatever has come to
the knowledge of the doctor would not be divulged and it is this
right which is being enforced through these proceedings.

It is the basic principle of jurisprudence that every right has a
correlated duty and every duty has a correlated right. But the rule
is not absolute.

It is subject to certain exceptions, in the sense that, a person may
have a right but there may not be a correlated duty. The instant
case, as we shall presently see, falls within the exceptions.
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.

The relevant provision of the Code of Medical Ethics contains an
exception to the general rule of confidentiality, in as much as it
provides that the information may be disclosed in a court of law,
under the orders of the presiding judge.

This is also the law in England, where it is provided that the
exceptions to this rule permit disclosure with the consent, or in
the best interests, of the patient, in compliance with a court order
or other legally enforceable duty and, in very limited
circumstances, where the public interest so requires.

Circumstances in which the public interest would override the duty
of confidentiality could, for example, be the investigations and
prosecution of serious crime, or where there is an immediate or
future(but not a past and remote) health risk to others.

The General Medical Council of Great Britain, in its guidance on HIV
infection and Aids has provided as under: Occasionally, the doctor
may wish to disclose a diagnosis to a third party other than a
health-care professional.

The Council thinks that the only grounds for this are when there is
a serious and identifiable risk to a specific person, who, if not so
informed would be exposed to the infection. A doctor may consider it
a duty to ensure that any sexual partner is informed, regardless of
the patient's own wishes.

Thus, the Code of Medical Ethics also carves out an exception to the
rule of confidentiality and permits the disclosure in the
circumstances enumerated above, under which, public interest would
override the duty of confidentiality, particularly where there is an
immediate or future health risk to others.

The arguments of the learned counsel for the appellant, therefore,
that the hospital`Z' were under a duty to maintain confidentiality
on account of the Code of Medical Ethics formulated by the Indian
Medical Council, cannot be accepted, as the proposed marriage
carried with it the health risk to an identifiable person who had to
be protected from being infected with the communicable disease from
which the appellant suffered.

The right to confidentiality, if any, vested in the appellant was
not enforceable in the present situation.

Learned counsel for the appellant then contended that the appellant
was HIV(+) and therefore, they are liable in damages. Let us examine
this contention.

The European Convention on Human Rights defines this right as
follows:

· Every one has the right to respect for his private and
family life, his home and his correspondence.

· There shall be no interference by a public authority in the
exercise of this right except such, as is in accordance with the law
and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection
of health or morals or for the protection of morals or for the
protection of the rights and freedoms of others".

Having regard to the fact that the appellant was found to be HIV(+),
its disclosure would not be violative of either the Rule of
Confidentiality or the appellant's right of privacy as Ms `Y' with
whom the appellant was likely to be married was saved in time by
such disclosure, or else, she too would have been infected with the
dreadful disease if the marriage had taken place and consummated.
Ms `Y' with whom the marriage of the appellant was settled, was
saved in time by the disclosure of the vital information that the
appellant was HIV(+).

The disease which is communicable would have been positively
communicated to her immediately on the consummation of the marriage.
As a human being, Ms `Y' must also enjoy, as she, obviously, is
entitled to, all the human rights available to any other human
being.

This is apart from, and, in addition to, the fundamental rights
available to her under Article 21, which, as we have seen,
guarantees the `right to life' to every citizen of this country.
This right would positively include the right to be told that a
person, with whom she was proposed to be married, was the victim of
a deadly disease, which was sexually communicable.

Since the `right to life' includes the right to lead a healthy life,
so as to enjoy all faculties of the human body in their prime
condition, the respondents, by their disclosure that the appellant
was HIV(+), cannot be said to have, in any way, either violated the
rule of confidentiality or the right of privacy.

Moreover, where there is a clash of two fundamental rights, as in
the instant case, namely, the appellant's right to privacy as a part
of the right to life and Ms Y's right to lead a healthy life which
is her fundamental right under Article 21, the right which would
advance the public morality or public interest, would alone be
enforced through the process of court.

For the reasons stated above, the appeal is without merits and is,
consequently, dismissed.

A civic appeal arose out of the order made by the National Consumer
Disputes Redressal Commission that the appellant should seek his
remedy in the Civil Court.

The Supreme Court upheld the observations made by the National
Commission that the appellant's right was not affected in any manner
in revealing his HIV positive status to the relatives of his fiancee.
(Decided on 10/12/2002).

(The writer is senior manager, professional services, Hinduja
Hospital, Mumbai. She may be contacted at drsiyerin-@...)


"Dr. Pradeep Kasar"
E-mail: <kasarpk@...>

________________________________

Dr. Pradeep Kasar" <kasarpk@...>
Date: Fri Mar 24, 2006 11:49pm
Subject: HIV Test before marriage


b) Make HIV test before marriage mandatory: victims

PONDICHERRY, NOV. 30. Rights activists may frown upon making fitness
certificate mandatory before marriage. But for Kaveri (25), it
protects women against HIV.

It should be made mandatory for a bride and bridegroom to produce a
fitness certificate before their marriage, argued the young woman
today at a press conference here, where she and four other HIV-
positive women narrated how they got the infetion. Except two, the
others got the virus after marriage. None of them knew that their
husbands were HIV positive.

Kaveri, an illiterate girl who hails from a fishing village here,
said, "I was compelled to marry my uncle's son. My father did not
know that he was identified as HIV positive and that was the reason
for his not going back to his work place in Saudi Arabia. I came to
know about his disease only when his health deteriorated. By then I
had given birth to a child. One day he committed suicide, jumping
into the sea."

Her in-laws, with whom she stayed after her husband's death, forced
her to marry again. "Though I refused, I was compelled to marry a
widower, whose wife had died of tuberculosis. Later, I came to know
that he was also HIV positive. He died a few months after marriage."
Saraswathi (26) and Yamuna (35), both from economically deprived
families, have similar stories to tell. The other two were forced
into prostitution by their lovers and were infected with the virus.

The press conference was organised by the Society for Development
and Research, a non-government organisation.
____________________
Dr. Pradeep Kasar
E-mail: <kasarpk@...>