CASE ANALYSIS

Mr. X v. Hospital Z

- Anjali Talia
INTRODUCTION
 HIV is a virus that attacks the immune system, which is our body’s
natural defence against illness. HIV stands for human immunodeficiency
virus. Unlike some other viruses, the human body can’t get rid of HIV
completely. So once you have HIV, you have it for life.
According to UNAIDS:
 There were approximately 36.7 million people worldwide living with
HIV/AIDS at the end of 2015. Of these, 1.8 million were children (<15
years old).
 An estimated 2.1 million individuals worldwide became newly infected
with HIV in 2015. This includes 150,000 children (<15 years). Most of
these children live in sub-Saharan Africa and were infected by their HIV-
positive mothers during pregnancy, childbirth or breastfeeding.
 Currently only 60% of people with HIV know their status. The remaining
40% (over 14 million people) still need to access HIV testing services.
 As of June 2016, 18.2 million people living with HIV were accessing
antiretroviral therapy (ART) globally, up from 15.8 million in June 2015,
7.5 million in 2010, and less than one million in 2000.

Coming to the case of Mr. X v. Hospital Z, here is the brief about the
case:

FACTS:

Mr. X, the Appellant, was about to get married when it was found that he was
living with HIV. “The marriage was called off on the ground of blood test
conducted at the respondent’s hospital in which the appellant was found to be
HIV(+).” As members of the Appellant’s family and community came to know
of his HIV status, he was ostracized from the community. He eventually had to
leave the state and relocate to another city.

The Appellant consequently approached the National Consumer Dispute

Redressal Commission (NCDRC) to claim damages against the Respondent.
The Appellant contended that the Respondent had illegally disclosed his
medical information and breached their duty to keep information about patients
confidential. NCDRC, however, dismissed the petition stating that the remedy
for such a dispute would be in civil court.
The Appellant then filed the appeal in the Supreme Court arguing that the “duty
of care” applicable to those in the medical profession included the “duty to
maintain confidentiality.”

ISSUES:

 Whether the Respondents were guilty of violating the Appellant’s

right to privacy guaranteed under Article 21 of the constitution of
India?
 Whether the respondents were guilty of violating the duty to maintain
secrecy under Medical Ethics?
 Whether the appellant was entitled to compensation from the
respondents?

RULES INVOLVED IN THE CASE:

 Section 20A of Indian Medical Council Act, 1956

 Indian Medical Council (Amendment) Act, 1964
 Article 21 of Constitution of India
 Sections 26, 269 and 270 of Indian Penal Code, 1860
 Section 13 (1) of Hindu Marriage Act, 1955
 Section 2 of Dissolution of Muslim Marriage Act, 1939
 Section 32 of Parsi Marriage and Divorce Act, 1936
 Section 10 of Indian Divorce Act, 1869
 Section 27 of Special Marriage Act, 1954

JUDGEMENT:

THE APPEAL WAS DISMISSED.

RATIONALE:

DUTY TO MAINTAIN CONFIDENTIALITY

Confidentiality pertains to the treatment of information that an individual has
disclosed in a relationship of trust and with the expectation that it will not be
divulged to others without permission in ways that are inconsistent with the
understanding of the original disclosure.

There are many ways in which the medical care workers breach the duty of
confidentiality, one of them is by talking to the family members of the patient.
The rule states that you can give information to a person who has a role in
taking care of the patient if you believe that releasing the information is in the
patient's best interest. However, it’s not always easy to determine that on your
own but in the present case, the wife of the appellant needed to know about the
health of his future husband as there was an immediate future health risk to her.

Even the Code of Medical Ethics 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 of future health risk to others. So the
right to confidentiality, if any, vested in the appellant was not enforceable in the
present situation.

RIGHT TO PRIVACY
In India the Constitution does not expressly recognise the right to privacy. But
after the case of Kharak Singh v. State of U.P the Supreme Court for the first
time recognised the right to privacy which is implicit in the Constitution under
Article 21.

Right of Privacy may, apart from contract, also arise out of a particular specific
relationship which may be commercial, matrimonial, or even political. As
already discussed above, Doctor-patient relationship, though basically
commercial, is, professionally, a matter of confidence and, therefore. Doctors
are morally and ethically bound to maintain confidentiality. In such a situation,
public disclosure of even true private facts may amount to an invasion of the
Right of Privacy which may sometimes lead to the clash of person's "right to be
let alone" with another person's right to be informed.

Disclosure of even true private facts has the tendency to disturb a person's
tranquillity. It may generate many complexes in him and may even lead to
psychological problems. He may, thereafter, have a disturbed life all through. In
the face of these potentialities, and as already held by this Court in its various
decisions referred to above, the Right of Privacy is an essential component of
right to life envisaged by Article 21. 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.

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. Akali 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.

Where there is a conflict between two derived rights, the right which
advances public morality or public interest should alone be enforced by a
process of court. The right to privacy of the appellant and the right to lead
a healthy life of another person were clashed, both of it having its origin in
Article 21. The disclosure of confidential information regarding the
appellant would invariably result in saving an innocent person from
contracting a deadly disease like AIDS. The disclosure of such information
is sensitive and might lead to social ostracism and cannot be done except
with an overwhelming consideration of public morality and public health.
AIDS patients deserve all respect as human beings and no person shall be
denied any opportunity or government jobs or service on the ground of
disease, but having ‘sex’ with them shall be avoided as the same would lead
to the communication of a dreadful disease and the court shall not assist
the person in achieving that object. Hence, in case of a conflict between
right to privacy and right to health of another, the right which advances
public morality and public interest prevails.

In this situation, the right to marry and duty to inform about his ailment are
vested in the same person. It is a right in respect of which a corresponding duty
cannot be claimed as against some other person. Such a right, for these reasons
also, would be an exception to the general rule that every "RIGHT" has a
correlative "Duty." Moreover, so long as the person is not cured of the
communicable venereal disease or impotency, the RIGHT to marry cannot be
enforced through a court of law and shall be treated to be a "SUSPENDED
RIGHT".

Sections 269 and 270 of the INDIAN PENAL CODE spell out two separate
and distinct offences by providing that if a person, negligently or unlawfully,
does an act which he knew was likely to spread the infection of a disease,
dangerous to life, to another person, then, the former would be guilty of an
offence, punishable with imprisonment for the term indicated therein.

Can the appellant, in the face of these statutory provisions, contend that the
respondents, in this situation, should have maintained strict secrecy? We are
afraid; respondents' silence would have made them participant criminis (partner
in crime).

LATER DEVELOPMENTS IN RIGHT TO PRIVACY

Right to privacy, once incorporated as a fundamental right, is wide enough to

encroach into any sphere of activity. The conferment of such a right has become
extremely difficult with the advancement of technology and the social
networking sites. But the other side of the picture is that right to privacy of a
person includes the right to maintain seclusion or seclude personal information
as well as the right to disclose personal information. The extent to which the
realm of privacy of each person should remain is subjective, which might differ
from person to person. The recognition of right to privacy can also be seen in
S.43 of Information Technology Act which makes unauthorized access into a
computer, computer system or computer resources invoke liability.

Today, each person is a press, taking in view the emergence of blog spots and
social networking sites. Many a times, the right to privacy may come in conflict
with the right to press. The right to press is a right derived from Article 19 (1)
(a) in particular. The right to expression of a person may come in conflict with
the right to privacy of another person. The question, where there is a conflict,
which should prevail over the other, is well explained by bringing in the concept
of ‘public interest’ and ‘public morality’. The publication of personal
information of an individual without his consent or approval is justified if such
information forms part of public records including Court records. Each case is
distinct and each right is special.

The right to privacy may come in conflict with the investigation of police in
several aspects. Narco-analysis, polygraph test and brain mapping tests, in
application, make unwarranted intrusion into the right to privacy of a person.
The Supreme Court was acknowledging the individual right to privacy by
declaring these tests inhuman and unconstitutional.

OPINION ON THE JUDGEMENT

Due to the above reasons, the judgment in my opinion is a sound judgment in
regards to the disclosure of the fact that the appellant suffered from HIV-AIDS
since public interest acts as an override to the duty of confidentiality imposed
on doctors, especially when there is an immediate future health risk to others.
The rationale for the decision is also justified from the viewpoint of both the
law and morality.