Is RTI Act taking away the sanctity of Hippocrates oath ?
The Chief Information Commissioner, while rendering his decision of 10-4-2015 in Case No:CIC/KY/A/2014/001348SA (Ms Jyoti Jeena v. PIO, Institute of Human Behavior & Allied Science ) has held that a wife who is applicant therein is entitled to get copies medical records of her estranged husband. The correctness of the decision is doubted by many including activists of medical ethics. The reason is that it makes inroads into the principles of confidentiality of patient related information which is a vital limb of Medical ethics.
The facts. The Appellant-wife, through her RTI application had sought for copies of all papers, documents, records, old paper, case history records etc available with the Institute of Human Behavior & Allied Science (IHBAS) in relation to her husband Shri. Sanjay Singh. PIO rejected the request holding that information sought for being one related to the psychiatric medical information of another person, is exempted under section 8(1)(e). When challenged, the first appellate authority (FAA) took the contrary view and directed the Public Information Officer to furnish the information. To comply with this order the PIO provided some information vide letter dt. 31.10.2014; but the applicant was still unsatisfied. She approached the CIC in Second Appeal.
Perhaps finding that the case involved intricate questions of law touching upon constitutional rights, and medical ethics, the Commission proceeded to pass an elaborate verdict. He noted that the wife is seeking the information about the medical records to support her case before the matrimonial court alleging that her husband Sanjay Singh had physically tortured her due to his mental illness. He also noted that the appellant and her brother had alleged that her husband and his relatives had suppressed the truth about his mental health to cheat her into marriage, which proved a hell for her thereafter. He held:
“If the record shows that appellant’s husband ‘has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent’, she is entitled to relief from that kind of life through divorce. If the disease of her husband falls under any category mentioned in the Explanation under the clause
of Section 13 of Hindu Marriage Act, she will be entitled to justice.
Thus there is a larger public interest in demanding the information about medical record of her husband who is treated at respondent authority. The Right of Privacy of husband is an essential component of right to life envisaged by Article 21. The Supreme Court rightly said: The right however, is not absolute and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others. Hence the appellant is entitled to know the disease her husband is suffering from to protect her right, prevention of crime of cruelty against her. The appellant being wife of the person whose medical reports she is seeking, makes the plea of privacy of the husband weak as she is legitimate family member whose consent will matter when husband cannot decide due to mental illness.
Hence the Commission holds that there is a larger public interest that require disclosure of medical records of a patient as mandated under Section 8(1)(j) and directs the respondent authority to furnish the information about the medical records of her husband to the extent she needed to establish the disease he was suffering from, its impact, continuity and incurability or curability, whatever it is along with necessary certified copies to protect her interest/right to secure divorce under the Hindu Marriage Act, to prevent crime of beating or cruelty against her allegedly being perpetrated or apprehended to have been perpetrated by her husband because of mental illness, shall be provided”.
Ethicists and Medical experts are concerned about the possible impact of the present decision. Is the CIC opening a Pandora’s box throwing time old and precious ethical principles to the wind? What if a resident asks for information intended to expose his hostile neighbor as an HIV patient? Is not consent of the affected party required to release such personal and sensitive information? Does this not violate the Constitutional rights of the husband and the law of the land? Is it legal to divulge such information without consent of the patient concerned? Will not the Doctor who collected the relevant information be exposed to the sin of violating the oath that he took when he started medical practice? Questions posed can be numerous.
For a critical analysis of the verdict, reference to the legal provisions involved is unavoidable. The RTI Act, as is well known, overrides even the official secrets Act and is definitely intended to provide the citizen with information available with public authorities very liberally. Exceptions to the normal rule of disclosure are only those items which are specified in Section 8 of the Act. It may at once be said that medical records, as such, do not find a place in Section 8 as an exempted item though among other matters, the following items do appear in Section 8.
- (e). Information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;
- 8(g) . Information, the disclosure of which would endanger the life or physical safety of any person……………..
- 8(j). Information which relates to 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 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………
- S.11(1) of the RTI Act mandates compliance with the principles of natural justice. According to this,
|“Where a Central Public Information Officer or a 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, he, 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 he intends to disclose the information or record, or part thereof, and invite the third party to make a submission whether the information should be disclosed, and consider the same while taking the decision on the question of disclosure.”5. It is also provided in the same section 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.6. S. 2(n) of the Act defines ‘Third party’ as a person other than the citizen making a request for information and includes a public authority. As regards a wife who seeks information, the husband, whether estranged or not, in respect of whom information is sought is hence undoubtedly a third party.|
The term ‘public interest’, however, is not defined in the Act. Therefore the Public Information Officers, Appellate Authorities and Information Commissioners - will need to judge each case on its merit and in the light of any emerging guidance or best practice available at the time. Needless to say, what is public interest will necessarily change with the never ending march of time and its interpretation will also depend on the surrounding matrix. Reference may in this connection be made to the SC decision in Girish Ramchandra Deshpande v. Central Information Commissioner and others [(2013) 1 SCC 212)]. That was a case in which Central Information Commissioner denied information asked for which pertained to the career, service details and assets of the third party on the ground that the data sought for was personal information as defined in clause (j) of Section 8(1) of the RTI Act. The Hon. SC confirmed the decision; found that no public interest is involved in the request and maintained that the rejection of the application was justified.
"Public interest" is a term widely used in different enactments. It is not capable of a precise definition and does not have a rigid meaning. There can be an argument that the term "public interest" denotes an interest that should serve a large section of the society as opposed to a small section of it, and also that the information sought should have a bearing on common questions, to wit the economy of the country, the moral values of the society; the environment and pollution; national safety, and the like. If we go by general meaning with reference to dictionary, public interest is interest in the welfare of the general public (in contrast to the selfish interest of a person, group, or firm), and interest in which the whole society has a stake and which warrants recognition, promotion, and protection by the government and its agencies. That the institution of marriage should subsist and protection of the interests of the weaker gender are certainly matters of public interest. Viewed from this perspective, the interests, more precisely, of a wife in the matter of access to justice when faced with matrimonial discords, may perhaps be taken as a matter of public interest.
As there is no precise definition given for ‘public interest’ in the Act, the CIC, and the Courts alone can decide whether in a given situation, personal information should be disclosed yielding to larger public interest. These are the in the two scales. What can be said is only that the Public Information Officer has certainly to weigh the competing claims of the privacy of the third party on the one hand and claim of public interest on the other and then determine whether the public interest justifies disclosure even if it violates privacy of a person.
Reference is found in Para 7 of the order the CIC to the decision in Mr. Surupsingh Hrya Naik vs State of Maharashtra (AIR 2007 Bom 121); but he left it half way through without mentioning the dictum therein or even mentioning whether he was following the decision or not. Actually that was a case where a citizen wanted information about the facilities being made available to an MLA who had been imprisoned for contempt of Court, and in particular, whether air conditioned accommodation was being given to the prisoner. The High Court examined all the aspects raised by the rival parties with regard to previous decisions of the Courts as also the provisions in the MCI Act and found that:
- it is within the competence of the concerned Public Information Officer to disclose such information in larger public interest,
- that the provisions of the Act would prevail over the MCI Regulations regarding privacy and that the Public Information Officer can disclose even personal medical information, if satisfied that the larger public interest justifies such disclosure. This discretion, however, must be exercised by him, bearing in mind the facts of each case and the larger public interest; provided the records are maintained by the State, a Public Authority or a Public Body. It also held that it is only in rare and in exceptional cases and for good and valid reasons recorded in writing that the information be denied. In other words, grant is the rule and denial is the exception to be justified by reasons recorded by PIO,
- that the right of hearing to be given to the third party is not an empty formality. The Court also mentioned in explicit terms that under Section 19(4) of the Act, the information could not be given without giving a reasonable opportunity of being heard to the third party, and that the failure to grant the opportunity cannot be cured by the appellate authority by grant of such an opportunity before passing of the appellate order.
Since the opportunity was not given in that case, the High Court remanded the matter to the PIO directing him to pass fresh orders after hearing the third party. Importance of the decision lies on the declaration that duty of the PIO to grant an opportunity of being heard to the affected third party is mandatory in nature. What is required is an opportunity to be heard and not getting of his consent. In other words, irrespective of whether the third party grants his consent or not, the PIO may decide to grant the record or details; but that can only be after affording an opportunity to the third party to show cause against such grant.
A perusal of the order of the CIC does not show that any such opportunity was given to the third party (Sanjay Singh). The CIC appears to be under an impression that since this is a case of demand for treatment of psychiatric disease, the husband can be taken as one of unsound mind with regard to whom service of notice will have no effect. I draw this inference from the following sentence which appears in his order.
“The appellant being wife of the person whose medical reports she is seeking, makes the plea of privacy of the husband weak as she is legitimate family member whose consent will matter when husband cannot decide due to mental illness”.
The suggestion appears to be that for such a patient the consent could come from the applicant herself in her capacity as wife. If this is the assumption resulting in the failure to give notice to the husband, certainly that is fallacious for several reasons. First of all the assumption that the husband is of unsound mind and incapable of responding to show cause notice has no legal basis. That he had consulted a psychiatrist is absolutely no reason to jump to a conclusion of unsoundness of mind. Secondly the CIC is incompetent to enter a finding with regard to the soundness or otherwise of the husband. Thirdly, assuming that the husband is a person of unsound mind, notice should have been issued to his guardian competent to protect his interests. And lastly, an estranged wife (applicant) with conflict of interests would not be a proper or competent guardian to represent him in such a case. For these reasons the order can be said to be defective. If taken to Court, it is almost certain that the order would be set aside for this fatal defect. I leave the aspect of failure to comply with natural justice here and proceed to the next point.
The CIC has examined the aspect of confidentiality of the information as follows:
“The Hippocratic Oath consists of two parts. The first, or covenant; is the solemn agreement concerning the relationship of apprentice to" teacher and the obligations enjoined on the pupil. The second part constitutes the ethical code.
It is on the basis of the above that International Code of Medical Ethics has laid down as under :
"A physician shall preserve absolute confidentiality on all he knows about his
patient even after his patient has died."
The Indian Medical Council Act controls the medical education and regulates the
professional conduct. Section 20A which was inserted by the Indian Medical Council (Amendment) Act 1964 provides as under
"33. Power to make regulations. The Council may, with the previous sanction of the Central Government, make regulations generally to carry out the purposes of this Act, and, without prejudice to the generality of this power, such regulations may provide for
xxx xxx xxx
(m) the standards of professional conduct and etiquette and code of ethics to be observed by medical practitioners,"
It is under these provisions that the Code of Medical Ethics has been made by the Indian Medical Council which, inter alia, 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,"
Supreme Court said in X v Hospital Y, 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 marriage had taken place and consummated.
Supreme Court said: Marriage is the sacred union, legally permissible, of two healthy bodies of opposite sexes. It has to be mental, psychological and physical Union. When two souls thus unite, a new soul comes into existence. That is how, the life goes on and on this planet. Mental and physical health isof prime importance in a marriage, as one of the objects of the marriage is the procreation of equally healthy children. That is why, in every system of matrimonial law, it has been provided that if a person was found to be suffering from any, including venereal disease, in a communicable form, it will be open to the other partner in the marriage to seek divorce.”
The aspect of academic interest to the medical field, involved here is whether, the order is bad for violation of the statutory provisions and on ethical considerations. According to me, the order need not necessarily fail on a finding that being confidential information, contents of medical records cannot be given to an applicant at all. That is a moot point. The larger public interest involved is the need to provide justice to the weaker gender and the need to advance the cause of justice in the matter of a matrimonial litigation. Suppose the applicant moves the Family court to issue summons for production of the very same medical records? That will have to be allowed subject to the examination of confidentiality, though such examination will only be after the records have reached the Court in a sealed cover. According to me, this is not a question of snatching away some records exploiting the liberal provisions in the RTI Act. The question whether the grant of information to a wife in such circumstances would come within the scope of the term ‘public interest’ appears to have been undecided in any previous case and as such it would attract examination by the Court if it reaches there on motion by some party. Until such a decision comes, the present decision certainly will stand and prima facie there is nothing condemnable in it on this ground.
Will this decision be a bad precedent? Will it lead to further extentions? Cannot a stranger or neighbor also seek a medical record of a third party? My answer is that such possibilities cannot be excluded. A neighbor bitten by a dog of the locality may want to start anti rabid treatment after ascertaining whether his neighbor is affected by rabies. Another may want to initiate preventive and curatory action after knowing whether his neighbor is affected by Ebola. Are these not matters of public interest? Whether grant of information would be justified in such cases will therefore depend upon the facts and circumstances and in an extreme case even a neighbor or stranger, according to me, may be justified in seeking it.
Was the applicant exploiting the liberality of the RTI Act? True, she could have moved the Family Court for issue of summons to produce the medical papers of the husband and got the records produced in sealed envelope in which case only the judge and the parties concerned would have had access to the confidential records. Of course that was one option; but does it preclude the alternative remedy under the RTI Act? According to me, no.
It is beyond doubt that a lot of circumspection and careful assessment of the comparative merit and consequences would be necessary while weighing confidentiality on one side of the scale and public interest on the other. It is for this reason that we require qualified persons to deal with such matters and cannot leave it to a computer.
To sum up, according to me, this order fails for the grave defect of denial of opportunity to the third party-husband and not because what is directed to be given are confidential medical records pertaining to a third party. Whether the interest of the wife as involved here is public interest is a matter for judicial scrutiny. In that sense, We have to wait for a court verdict for the ultimate result. Perhaps that may happen only if the third party-husband challenges the order before the court raising questions of his constitutional rights.