With reports confirming that Tamil Nadu Chief Minister J Jayalalithaa is “recovering and is out of danger”, it's time to ask a critical question that most of us forgot: Was it right to ask for her health information?
Nothing could have been more illustrative of the ignorance about privacy and confidentiality in India than the clamour for Jayalalithaa’s medical information ever since she was admitted to Apollo hospital in Chennai on 22 September. It also exposed the double standards of our political leaders.
Probably, journalists were professionally justified in being nosy, but the Opposition leaders’ demands for information on her medical condition and the details of her treatment were patently vulgar. No law in India or any part of the world could have justified releasing such information. DMK president Karunanidhi was insistent and even went a step further by asking for her photo from the hospital. The opportunistic politician in him didn’t care that modesty and bodily integrity were also essential features of medical privacy.
If nobody gets to know what happened to Jayalalithaa when she finally gets discharged from the hospital, unless she herself volunteers to disclose, it will be a victory for medical ethics in India. It was high time that we had a high profile case in which the trust between a patient and his/her doctor/hospital wasn’t breached even under extraordinary pressure. It would also show that an Indian hospital can indeed protect medical information if it’s determined
Confidentiality, the cornerstone of patient-doctor relationship, is a frequent casualty in the Indian healthcare setting that even the Supreme Court once failed to uphold when a prominent hospital informed the family of the fiancé of a blood donor that he was HIV positive. Although our laws and codes of professional conduct are not as robust as those in the UK and the US, the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 (Code of Ethics Regulations, 2002), do provide a decent framework for doctors and institutions to deist from sharing patient information with a third party.
According to this Code of Ethics, “Physicians are obliged to protect the confidentiality of patients during all stages of the procedure and with regard to all aspects of the information provided by the patient to the doctor, including information relating to their personal and domestic lives” except in a situation when there is a serious risk to a specific person or community.
This is not majorly different from the UK’s General Medical Council (GMC) guideline that “you must respect the wishes of any patient who objects to particular information being shared with others providing care, except where this would put others at risk of death or serious harm". The idea is more or less the same with the AMA (American Medical Association) Principles of Medical Ethics as well when they state that “a physician shall safeguard patient confidences and privacy within the constraints of the law”.
In simple words, a clinician should not disclose information about a patient without authorisation. In Jayalalithaa’s case, the only person authorised to do that, unless there is a court order that cites an extraordinary threat to others, is she herself. In fact, to make a strong case for deterrence, every single rumour about her medical condition should be traced and the culprits should be brought to book.
Historically people have been curious and speculative about the health conditions of political leaders and public figures. The health conditions of autocratic cult leaders such as Adolf Hitler and Mao Zedong were state secrets. Documentary films and books posthumously sought to establish that both suffered from Parkinson's in addition to a host of other illnesses, including, in Hitler’s case, syphilis. In India, nobody knows what ails Sonia Gandhi although the party had made it public that she had sought treatment abroad. The situation is similar in the US, where the media is inquisitive, but Democratic candidate Hillary Clinton and her party know what’s public and what’s private.
In Sonia’s case, the rationale of the Opposition and the media was that the country needed to know because she was the president of the party that led the then national government. Against Jayalalithaa too, the argument was the same.
Since Jayalalithaa is a public figure holding the highest public office in the state, could accountability override the right to privacy because they seem to be in conflict? In other words, does Jayalalithaa’s role as the executive head of the state mandate a disclosure? No. Not by the IMC code or by law. Even the PIL filed in the high court by serial pubic interest litigant Traffic Ramaswamy seeking to know her status is both ethically and legally unsound.
Although in the case of Jayalalithaa and Sonia Gandhi, the right to privacy seemed to have been protected, the overall situation in India is really bad. The Right to Information (RTI) Act has made the situation even worse. For instance, the Maharashtra High Court ruled that the MCI code, which incidentally is only a subordinate law, cannot override the RTI. In the Surupsingh Hrya Naik vs. State of Maharashtra case, the court said that the health records of a person in police or judicial custody, if admitted to a State or government hospital during custody, should be made available under the RTI Act, and should be denied only in exceptional cases for good and valid reasons.
The continuous assault on the right to privacy and confidentiality that Chennai witnessed over the last two weeks highlights the need for robust legal reform on the issue and stronger ethical standards. Powerful leaders such as Hillary Clinton, Sonia Gandhi and Jayalalithaa have the wherewithal to defend their rights, not the ordinary citizens of India. They need protection by the State because sometimes even courts let them down.