RTI
A Landmark decision on 'Patient's Privacy' with reference to Exemptions under Sec 8 of RTI Act
|
IN THE HIGH COURT OF BOMBAY Writ Petition No. 1750 of 2007 Decided On: 23.03.2007 Mr. Surupsingh Hrya Naik AIR2007Bom121, 2007(3)ALLMR442, 2007(3)BomCR134,
(2007)109BOMLR844, 2007(4)MhLj573 Hon'ble Judges: Ratio Decidendi:
“The confidentiality required to be maintained of the medical records of a
patient including a convict considering the Regulations framed by the Medical
Council of India can not override the provisions of the Right to Information
Act.” Facts The petitioner is presently a Member of the Legislative Assembly of the State of Maharashtra. Contempt Proceedings had been initiated against the petitioner by the Honourable Supreme Court, which imposed on him imprisonment of one month, by judgment dated 10th May, 2006. The petitioner on 12th May, 2006 surrendered to the Police Authorities in Mumbai and was taken in custody. On 14th May, 2006 Petitioner was shifted to Sir J.J. Hospital, Mumbai on account of suspected heart problems as well as low sugar and blood pressure. According to the petitioner he underwent medical treatment at Sir J.J. Hospital, Mumbai for the period of 21 days and was discharged on 5th June, 2006. Petitioner served the remaining tenure of imprisonment till 11th June, 2006 in jail on which day he was released from custody on completing the period of sentence. The Respondent No. 5 is a private citizen who by an application dated May, 27, 2006 sought from the Respondent No. 4, the Public Information Officer of Sir J.J. Hospital, Byculla, Mumbai, the medical reports of the petitioner. In his application it was set out that it was in public interest to know why a convict is 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 peoples mind. There is, therefore, a legitimate doubt about the true reasons for a convict being accommodated in air conditioned comfort of the hospital, thereby ensuring that the convict escapes the punishment imposed on him and also denies a scarce facility to the needy. On 20th June, 2006
the Public Information Officer addressed a letter to the General
Administration Department, State of Maharashtra, seeking information of the
legal aspects regarding the application made by respondent No. 5 under the
provisions of the Right to Information Act. On 4th July, 2006 in response to
the letter the respondent No. 4 clarified that the Right to Information Act
is a Central Act and any clarification, assistance or doubt as to interpretation
of the provisions of the Act will have to be sought from the Central
Government. On 3rd July, 2006 the Respondent No. 4 addressed a letter to the
petitioner, intimating him that information about the petitioner's
hospitalization between 15th May, 2006 to 5th June, 2006 had been sought by
the Respondent No. 5. The petitioner was called upon to give his say as to
whether the information should be given. There is nothing on record to
indicate whether the petitioner replied to the said letter. As the respondent No. 4 did not furnish the necessary
information, the respondent No. 5, preferred an Appeal on 21st June, 2006
before the Respondent No. 3. On 3rd July, 2006 the Respondent No. 3 rejected
the application on the ground that the same was not signed by the respondent
No. 5. Respondent No. 5 preferred another Appeal to respondent No. 3 under
Section 19(1) of the Act,
which was rejected on 25th July, 2006. Aggrieved by the said order the
respondent No. 5 preferred a Second Appeal before the Respondent No. 2. The
Respondent No. 2 allowed the Appeal and for reasons disclosed in the order
directed the respondent No. 4 to give information to the respondent No. 5. At the hearing of this petition, the impugned order is challenged on various counts. : (a) The information sought for by the Respondent No. 5, it is
submitted is private and as such could not have been disclosed to Respondent
No. 5 without the consent of the petitioner. (b) It is next submitted that considering Section 19(4) of the Right to
Information Act before passing an order against the petitioner, the
Respondent No. 2 was bound to give notice to the petitioner herein. Such
notice has not been given and consequently the order passed by the respondent
No. 3 is without jurisdiction and consequently is liable to be quashed and
set aside. On behalf of the
petitioner, learned Counsel submits that the information sought for by
Respondent No. 5 of the petitioners medical records is confidential,
considering the Indian Medical Council (Professional Conduct, Etiquette and
Ethics) Regulations 2002 framed under the provisions of the Indian Medical
Council Act, 1956, which hereinafter are referred to as the Regulations.
Regulation 2.2 which is relevant, reads as under:
It appears from this Regulation, that the information as sought,
should not be revealed unless the revelation is required by the law of the
State. The next relevant Regulation is Regulation 7.14 which reads as
under:
From this Regulation it follows that the Medical Practitioner
shall not disclose the secrets of his patient that has been learnt in the
exercise of his profession except in a Court of law and under orders of the
Presiding Judge. The expression "Court of Law" and Presiding Judge
have not been defined. Considering normal interpretive process, the
expression "Court of Law" and orders of Presiding Judge should
include both Courts and Tribunals. Reliance was placed on the Declaration of Geneva, adopted by
the 2nd General Assembly of the World Medical Association, Geneva,
Switzerland, September, 1948 and as amended thereafter. Under this convention
there is a provision pertaining to right to confidentiality of information
about the patients health status, medical condition, diagnosis, prognosis and
treatment and all other information of a personal kind with the exception,
that descendants may have a right of access to information that would inform
them of their health risk. Otherwise the confidential information can only be
disclosed if the patient gives explicit consent or as expressly provided in
the law. Clause 10 refers to right to dignity. Even if India is a signatory
to the said declaration, Parliament has not enacted any law making the
declaration a part of the Municipal Law. It is well settled that in the
absence of Parliament enacting any law adopting the convention, the
convention by itself cannot be enforced. It is only in the area of Private
International law, in Jurisdictions like Admirality/Maritime, that
international conventions are enforced based on customary usage and practice.
That however, will be subject to the Municipal Law if there be any. In the
absence of the convention being recognised by law duly enacted, the
provisions of the convention cannot really be enforced. The only other way
the convention can be enforced is, if it can be read into Article 21 of the
Constitution. See Unnikrishnan J.P. v. State of A.P. [1993]1SCR594
. THE COURT OBSERVED: The question that
we are really called upon to answer is the right of an individual, to keep
certain matters confidential on the one hand and the right of the public to
be informed on the other, considering the provisions of the Right to
Information Act, 2005. In support of the contention, that the information is private and confidential and ought not to be disclosed, the petitioner has invited our attention to various judgments. We may firstly refer to the judgment of the Supreme Court in Peoples Union For Civil Liberties v. Union of India MANU/SC/0149/1997 : AIR1997SC568 . The issue arose in a matter of telephone tapping. The Supreme Court noting its judgment in Kharak Singh v. State of U.P. MANU/SC/0085/1962 : 1963CriLJ329 , held that "right" includes "right to privacy" as a part of the right to life under Article 21. Noticing various other judgments, including in R. Rajagopal v. State of T.N. MANU/SC/0056/1995 : AIR1995SC264 the Court arrived at a conclusion that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens under Article 21. It is a "right to be let alone". A citizen has a right "to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters." The Court further observed as under: The right to privacy - by itself - has not
been identified under the Constitution. As a concept it may be too broad and
moralistic to define it judicially. Whether right to privacy can be claimed
or has been infringed in a given case would depend on the facts of the said
case. But the right to hold a telephone conversation in the privacy of ones
home or office without interference can certainly be claimed as "right
to privacy". Conversations on the telephone are often of an intimate and
confidential character. Telephone conversation is a part of modem mans life.
It is considered so important that more and more people are carrying mobile
telephone instruments in their pockets. Telephone conversation is an
important facet of a mans private life. Right to privacy would certainly include
telephone conversation in the privacy of ones home or office.
Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law." 9. Reliance was placed in Mr. "X", Appellant v. Hospital "Z", Respondent MANU/SC/0733/1998 :
AIR1999SC495 . The issue involved therein is disclosure of information of a
patient affected by HIV. The Court observed that in doctor-patient
relationship, the most important aspect is the doctors duty of maintaining
secrecy and the 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. The Code of Medical Ethics, carves out an exception to
the Rule of confidentiality and permits the disclosure in the circumstances
enumerated in the judgment under which public interest would override the
duty of confidentiality particularly where there is an immediate or future
health risk to others. Dealing with the aspect of privacy, the Court observed
as under:
Section 8(1)(j) provides that
personal information the disclosure of which has no relationship to any
public activity or interest, or which would cause unwarranted invasion of the
privacy of the individual shall not be disclosed unless the Central Public
Information Officer or the State Public Information Officer or the Appellate
Authority is satisfied, that the larger public interest justifies the
disclosure of such information. In other words, if the information be
personal or would amount to invasion of privacy of the individual, what the
concerned Public Information Officer has to satisfy is whether the larger
public interest justifies the disclosure. In our opinion, the Regulations
framed under the Indian Medical Council Act, will have to be read with
Section 8(1)(J) of the Right to
Information Act. So read it is within the competence of the concerned Public
Information Officer to disclose the information in larger public interest or
where Parliament or State Legislature could not be denied the information. In this case we are dealing with a case of a person who was
sentenced for contempt of the Court at that time in respect of which the
information is sought. In D.Bhuvan Mohan Patnaik and Ors. v. State of A.P. and Ors. MANU/SC/0038/1974 :
1975CriLJ556 the Supreme Court reiterated the rights of a convict and was
pleased to hold that:
The Court also held that the conviction may result in
deprivation of fundamental freedoms like the right to move freely throughout
the territory of India or the right to "practice" a profession. But
the Constitution guarantees other freedoms for the exercise of which
incarceration can be no impediment. The convict is entitled to the precious
right guaranteed by Article 21 of the
Constitution of India. Therefore, under our constitution the right to
personal liberty and some of the other fundamental freedoms are not totally
denied to a convict during the period of incarceration. The law as discussed may now be set out. The confidentiality
required to be maintained of the medical records of a patient including a
convict considering the Regulations framed by the Medical Council of India
cannot override the provisions of the Right to Information Act. If there be
inconsistency between the Regulations and the Right to Information Act, the provisions
of the Act would prevail over the Regulations and the information will have
to be made available in terms of the Act. The Act, however, carves out some
exceptions, including the release of personal information, the disclosure of
which has no relationship to any public activity or interest or which would
cause unwarranted invasion of the right to privacy. In such cases a
discretion has been conferred on the concerned Public Information Officer to
make available the information, if satisfied, that the larger public interest
justifies the disclosure. This discretion must be exercised, bearing in mind
the facts of each case and the larger public interest. In those cases where
the information sought cannot be denied to either Parliament or State Legislature,
as the case may be, then the information cannot be denied unless the third
person satisfies the authority that Parliament/Legislature, is not entitled
to the information. Having said so, we are left with the other contention urged
on behalf of the petitioner, that considering Section 19(4) of the Act which
we have earlier reproduced the information could not have been given without
giving a reasonable opportunity of being heard to the third party, in the
instant case the petitioner. We may note the scheme of the Act. In so far as
the Public Information Officer is concerned before giving any information an
opportunity has to be given to the third party as can be seen from Section 11 of the Act. We
then have Section 19(2) which provides
for an Appeal against an order by a person aggrieved to disclose third party
information. The right of Appeal is also conferred under Section 19(4). In such cases
the Section requires that the third party should be given a reasonable
opportunity. It, therefore, appears that before any order is passed a third
party has to be given notice in order that he may be heard. The question is
whether this provision is purely procedural and failure to give notice would
not render the decision illegal. Learned Counsel relies on the judgment in
the case of State Bank of Patiala and Ors. v. S.K. Sharma MANU/SC/0438/1996 :
(1996)IILLJ296SC . The issue there pertained to a Departmental enquiry and
the right to be heard or given an opportunity. While dealing with the issue
the Court noted, adverting to the principles of natural justice, that there
cannot be any hard and fast formula. If failure amounts to violation of a
procedure the Court observed and prejudice has been occasioned, the same has
to be repaired and remedied by setting aside the enquiry, if no prejudice is
established no interference is called for. The Court then observed as under:
The Section itself contemplates, that before giving information
the third party has to be given an opportunity. It will, therefore, be
difficult to accept the contention that this is merely a procedural
requirement and that the party would not be prejudiced. As we have noted,
normally the information sought about medical records of a convict and the
like must be made available, yet it is possible that in a given case, a party
may give sufficient reasons as to why the information should not be revealed.
In the instant case considering that the petitioner was convicted for
contempt and was sent to jail and thereafter spent larger part of his prison
term in hospital the right of a public to be informed would normally outweigh
the right of the petitioner to hold on to his medical records. But as noted
by the Courts the right of hearing is not an empty formality. If the
petitioner did not get a hearing before the Appellate Authority, it cannot be
argued that the same can be cured by the petitioner getting an opportunity
before this Court. A long term ago Meggarry J., in National Union of Vehicle
Builders (1971) 1 Ch.34 observed as under:
This proposition was approved by the Apex Court in Institute of
Chartered Accountants of India v. L.K. Ratna AIR 1987 SC 72. In some cases in
exercise of extra ordinary jurisdiction, the Court perhaps in order to avoid
multiplicity of proceedings and the delay occasioned might without remanding
the matter decide the matter provided all the material is on record. On the
facts here petitioner had no opportunity of giving his say before the
Appellate Authority. Hence we are not inclined to adopt that course on the
facts of the case. Even otherwise the requirement of notice is not an empty
formality. It gives an opportunity to the third party to put its point of
view why the information should not be disclosed and be heard on the point.
Admittedly in this case no notice was given to the petitioner by Respondent
No. 2. In the light of that in our opinion for the failure by the
respondent No. 2 to give an opportunity to the petitioner the impugned order
will have to be set aside and the matter remanded back to Respondent No. 2 to
give an opportunity to the petitioner and thereafter dispose of the matter
according to law. Considering the public element and interest involved we
direct the respondent No. 2 to dispose of the matter on remand within 30 days
from today. |
|
(Should not be taken as official copy of the judgment. Emphasis given by Author.) |
No comments:
Post a Comment