Confidentiality in HIV/AIDS patients and RTI Act - an article

[Guest guest]

Right to information ACT AND CONFIDENTIALTY IN People living with HIV/AIDS

27 February, 2010 06:58:00 Dr Samiksha Kaur, Dr Jai Singh Yadav.

Dr Samiksha kaur

Psychologist

Sri Ram Laxmi Marwari Hindu Hospital Varanasi

Dr Jai Singh Yadav

Assistant professor.Department of Psychiatry

IMS BHU

Aim-To finds out the role of RTI (Right to information) in the context of confidentiality.

INTRODUCTION

Ethical reasons strongly support the need to protect the privacy of HIV infected persons. If the confidentiality of treatment is not ensured then patient keep away from HIV testing, counseling and treatment and lose trust with their doctors. There is social stigma attached to HIV infection and economic harm to the person concerned. There is also the embarrassment, social isolation, loss of employment, chances of employability, insurance or insurability or even housing.

Though protecting the confidentiality of HIV related information, there are rules permitting the disclosures in special circumstances to ambulance and emergency room workers, police, prison official, health care workers, school official etc. In the same manner media too has inroad in passing on information on the HIV status to the public at large.

The HIV epidemic has created two conflicting and important legal and ethical obligation. The need to protect the privacy of the infected by of the by HIV and duty to inform person who may be exposed to HIV are two compelling reason working against each other. On the one side is the social stigma, isolation and discrimination of HIV infected person if the privacy is not maintained while on the other hand the public has right to know if their sexual or needle sharing partner's are HIV positive.

Doctors are faced with dilemma: Confidentiality towards patients and obligations to inform persons of the risk to HIV infection. Reconciliation between obligations of right to privacy and the right to know has to be worked out according to the situations. Where the risk contracting HIV is remote, right to privacy should be absolute. The ideal law should give power to the health care professionals to disclose the information when it is necessary to avert the risk of transmission.

In one case (1988) the Supreme Court suspended the right of HIV-positive person to marry. Although the judgment recognized the right to privacy and the duty of physicians to maintain confidentiality, it held, inter alias that the Code of Medical Ethics formulated by the Medical Council of India creates an exception to confidentiality when public interest is at stake and where there is an immediate or future health risk to others. The court found that the disclosure of the appellants HIV – positive status to a prospective spouse was not violative of the principle of confidentiality since the spouse was saved by such disclosure. The court, however, failed to lay down any condition and protocols by which such disclosure was to be made.

It also added that an HIV–positive person who marries and transmits the infection to the spouse would be criminally liable under Section 269 and 270 of the Indian Penal Code which criminally those who perform a negligent or malignant act likely to spread a disease dangerous to life.

In 2002 Supreme Court set aside the appellant's right was not affected due to revelation of his HIV positive status to the relative of the prospective spouse.

WHAT IS RTI (Right to information) ACT

Act no 22 (2005 ) called the right to information. This Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority the constitution of a Central Information Commission and Stat Information Commissions and for matters connected therewith or incidental thereto. It contains the place belonging to Government includes a place occupied by any department of the Government, whether the place is or is not actually vested in Government.

WHAT IS CONFIDENTIALITY

The concept of confidentiality is related and derives from the fundamental right of privacy. Confidentiality has been as a legal right and a corresponding duty, court have found that there should be a relationship between two persons. According to the judicial interpretation of the Supreme Court, Article 21 of the Constitution of the India guarantees every citizen including people living with HIV/AIDS (PLHAs) the right to live with human dignity and to safeguard his/her privacy.

CONFIDENTIALITY BY COURT

Courts have found the right to confidentiality is vital in cases of HIV/AIDS. This has been done by balancing the public interest to maintain confidentiality against the public interest to disclose. Courts have held that HIV positive status falls within a legally recognized zone of privacy and that involuntary/ non consensual disclose of HIV test results could undermine the public interest as it discourages persons from getting themselves test for HIV.

CONFIDENTIALITY BY DOCTOR

The health care context, for instance, courts have found that a doctor is bound by duty not to disclose information obtained in his/her professional capacity, without the consent of the patient unless she/he was compelled by law to disclose.Where a newspaper disclosed that doctors in a hospital were HIV-positive and threatened to disclose their names, the hospital obtained an injunction for the same from the court.

CONFIDENTIALITY BY PATIENT'S

There is no law to maintain confidentiality of the health status of PLHAs in India. But interpretation of Supreme Court, Article 21 of the Constitution of India guarantees every citizen including PLHAs the right to live with human dignity and to safe guard his/her privacy and right to disclose this information as s/he considers in her/his best interest (Supreme court). But the law also envisages situations where it may be necessary to disclose the HIV positive status of an individual irrespective.

CONFIDENTIALITY BY MEDIA

The Court found that freedom of press to publish such information and the latter public interest would not be impeded due to nondisclosure of the name.

CONFIDENTIALITY BY HEALTH CARE WORKER

Health care worker revealed a patient's HIV- positive status and identity without the patient's permission but approval for superiors, she and her employer liable.

The law also envisages situation where it may be necessary to disclose the HIV- positive status of an individual---

A) Cases where notification to public authorities is required by law

Cases where disclosure is necessary in the public interest

C) Cases where disclosure is necessary for the administration of justice

D) Cases where disclosure is necessary for treatment of the patient

E) Cases where disclosure is necessary to protect another person

F) Cases where disclosure when the person concerned gives informed and written content for disclosure of her//his status

CONCLUSION

RTI Act- 2005 provides information about document, data of any government department. But RTI Act not provides personal profile of any person who is suffering from HIV/AIDS disease. Because article 12 given a fundamental right of privacy/ confidentiality to every PLHAs or citizen.

REFERENCES

1. Right to Information Act no 22, 2005.

2. P.D. Mathew (1998), AIDS and Law, Indian Social Institute, New Delhi.

3. Gracious, , et al (1997) AIDS, Law and Social Work, Rawat publication New Delhi.

4. The Lawyers Collection Legislating an Epidemic HIV/AIDS in India, Universal Law Publishing Co. Pvt. Ltd.

5. AIDS, Law and Humanity. Interdisciplinary International Conference, New Delhi, December 6-10 1995, Indian Law Institute, New Delhi.

Key words PLHAS – People living with HIV/AIDS, RTI—Right to information.