Dr KK Aggarwal
Until this week, right to
privacy was only inferred from the Article 21 “Protection of Life and Personal
Liberty” of our constitution and not recognized as a fundamental right or
guaranteed by the constitution. But, the judgement of the Supreme Court of
India on August 24 (Thursday) has now granted the right to privacy as a
fundamental right. It’s a historic judgement, which may well redefine what
information can be accessed and how information can be used.
The Right to Information (RTI)
Act was enacted in 2005 to make the citizens informed about the activities of
the Government. Under the provisions of the Act, any citizen of India may
request information "public authority", which is established,
constituted, owned, controlled or substantially financed by funds provided
directly or indirectly by the Govt (Central/State/UT). RTI mandates timely
response to citizen requests for government information. This right to
information includes right to obtain information and to disseminate that
information.
Privacy of information gives a
person control over his personal information including health information.
He/she has the right to decide if as well as with who this information can be
shared with.
There is a concern that
personal health information of a patient can be accessed via the RTI Act.
However, the RTI Act has
provided for the protection of patient’s personal information in
Section 8(1)(j) and section 11, which relates to third party information.
Section 8(1)(j) relates
to exemption from disclosure of personal information, which is purely concerned to the person in
question and is not of public interest. It secures personal health information and does not
automatically grant the right to request any personal information such as
medical records, tax returns. Disclosure can be refused
unless it is in the larger public interest.
“Section 8(1)(j): information
which relates to personal information the disclosure of which has not
relationship to any public activity or interest, or which would cause
unwarranted invasion of the privacy of the individual unless the Central Public
Information Officer or the State Public Information Officer or the appellate
authority, as the case may be, is satisfied that the larger public interest
justifies the disclosure of such information: Provided that the
information, which cannot be denied to the Parliament or a State Legislature
shall not be denied to any person.”
Section 11 relates to
disclosure of third party information. Any confidential third party information
can be disclosed after informing the third party i.e. who has provided the confidential
information. Information can still be disclosed, even if the third party denies
permission, if the public interest outweighs any injury to privacy of the said
third party.
“11. Third party
information.—
(1) Where a Central
Public Information Officer or the State Public Information Officer, as the case
may be, intends to disclose any information or record, or part thereof on a
request made under this Act, which relates to or has been supplied by a
third party and has been treated as confidential by that third party, the
Central Public Information Officer or State Public Information Officer, as
the case may be, shall, within five days from the receipt of the request,
give a written notice to such third party of the request and of the fact that the
Central Public Information Officer or State Public Information Officer, as the
case may be, intends to disclose the information or record, or part
thereof, and invite the third party to make a submission in writing or orally,
regarding whether the information should be disclosed, and such submission of
the third party shall be kept in view while taking a decision about disclosure
of information: Provided that except in the case of trade or commercial secrets
protected by law, disclosure may be allowed if the public interest in
disclosure outweighs in importance any possible harm or injury to the interests
of such third party.
(2) Where a notice is
served by the Central Public Information Officer or State Public Information
Officer, as the case may be, under sub‑section (1) to a third party in respect
of any information or record or part thereof, the third party
shall, within ten days from the date of receipt of such notice, be
given the opportunity to make representation against the proposed disclosure.
(3) Notwithstanding
anything contained in section 7, the Central Public Information Officer or
State Public Information Officer, as the case may be, shall, within forty
days after receipt of the request under section 6, if the third party has been
given an opportunity to make representation under sub‑section (2), make a
decision as to whether or not to disclose the information or record or part
thereof and give in writing the notice of his decision to the third party.
(4) A notice given under
sub‑section (3) shall include a statement that the third party to whom the
notice is given is entitled to prefer an appeal under section 19 against the
decision.”
Doctors have an ethical duty
to keep patient’s health information confidential and not disclose it to others
without consent as per the MCI Code of Ethics Regulations. But the MCI Ethics
Code has also defined conditions when patient information can be disclosed
under Regulations 2.2 and 7.14.
“2.2 Patience, Delicacy and
Secrecy: Patience and delicacy should characterize the physician. Confidences
concerning individual or domestic life entrusted by patients to a physician and
defects in the disposition or character of patients observed during medical
attendance should never be revealed unless their revelation is required by the
laws of the State. Sometimes, however, a physician must determine whether
his duty to society requires him to employ knowledge, obtained through
confidence as a physician, to protect a healthy person against a communicable
disease to which he is about to be exposed. In such instance, the physician
should act as he would wish another to act toward one of his own family in like
circumstances.
7.14 The registered
medical practitioner shall not disclose the secrets of a patient that have been
learnt in the exercise of his / her profession except –
- in a court of law
under orders of the Presiding Judge;
- in circumstances
where there is a serious and identified risk to a specific person and / or
community; and
- notifiable
diseases.
In case
of communicable / notifiable diseases, concerned public health authorities
should be informed immediately.”
Right to information and right
to privacy can be considered two sides of the same coin. Like all fundamental
rights, right to privacy is fundamental, but not an absolute right. It is
subject to reasonable restrictions as imposed by the State.
But, will the new fundamental
right to privacy impinge upon the RTI Act and limit its scope in some way? This
would depend on if the definition of “public interest” is expanded.
Disclaimer: The views
expressed in this write up are entirely my own
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