BREACHING PATIENT CONFIDENTIALITY IS PROFESSIONAL MISCONDUCT AND ACTIONABLE

By Dr. Lalit Kapoor ©

It is a fact that most doctors do not understand the importance of patient confidentiality, though surprisingly, they understand this easily when they themselves become patients!!

Confidentiality is an integral part of the trust between patients and doctors. The assurance of confidentiality is conducive to the patient sharing the most personal information with the doctor. And this in turn potentiates oo quality treatment. 

Whatever conversation you have with a patient as a doctor is considered to be privileged communication and the medical information which you generate about the patient in the course of the investigations is supposed to remain confidential 

(with certain exceptions as we will see later).

Not respecting this is a violation of the Code of Medical Ethics and an infringement of the legal rights of the patient. As a result of this,, you could find yourself in bothersome medico-legal problems.

Reviewing a few real-life examples will clarify the point better.

A 30-year-old male was admitted to a nursing home for pyrexia. In the course of investigations, it was detected that he was seropositive for HIV. On learning this, the patient said he would prefer to take treatment as an outpatient and was hence discharged. The same evening, 3 colleagues from the patient’s office came to see him, unaware that he had been discharged. When informed at the reception that the patient had left the hospital, one of the visitors asked a nurse who happened to be there, “Sister, what was wrong with him?” The nurse replied: “He turned out to be HIV positive.” The visitors left and nothing was heard thereafter from the patient. Several months later, the patient sent a legal notice to the physician who had treated the patient and the owner of the nursing home. He claimed that as a result of the disclosure of his HIV status by the hospital, he had been financially ruined, socially stigmatized, and had suffered severe mental agony. Accordingly, he expected to be compensated to the tune of Rs. 20 lakhs. As per his account, a month after he left the hospital,  at a social gathering of his office friends,  he had a heated argument  on some topic with one of his colleagues, following which his colleague shouted at him in full hearing of the entire office staff: “You have no right to talk, we know you are HIV positive .”

He claimed that as a result of the disclosure of his HIV status by the hospital, he had been financially ruined, socially stigmatized, and had suffered severe mental agony. Accordingly, he expected to be compensated to the tune of Rs. 20 lakhs. As per his account, a month after he left the hospital,  at a social gathering of his office friends,  he had a heated argument  on some topic with one of his colleagues, following which his colleague shouted at him in full hearing of the entire office staff: “You have no right to talk, we know you are HIV positive .”

As a result of this disclosure, the construction company where he worked slowly eased him out of his job, and other Construction companies would not give him a job (Those were days when HIV/AIDS was considered a dreaded disease). His parents and family members were also ostracized. All this happened ONLY because the hospital had violated the confidentiality between a patient and a doctor. His life had been ruined as a consequence of this and hence this demand for compensation for which he filed a complaint before the Consumer Forum. Many social activists and NGOs supported the patient and it became a high-profile case. The case went on for a few years but finally, to the good luck of the defendants, the claim was dismissed by the Hon’ble Forum on some technical grounds. 

A female patient went to a male Gynecologist for a complaint of foul-smelling vaginal discharge. On internal examination, the doctor detected a foreign body that seemed to be the cause of the discharge. On careful examination of the foreign body, which was duly removed, the Gynecologist was intrigued to note that the foreign body was a condom. The lady conceded that it might have been retained following intercourse some days ago. The doctor then prescribed some medicines and assured her speedy recovery. Everything was fine except what happened after that.

As it turned out, the Gynecologist happened to know the husband, being members of the same sports club.

A couple of weeks later, the doctor happened to meet the lady’s husband at the club, and they struck up a conversation. The Gynecologist enquired about his wife’s health, and added in good humor,” I say, you don’t even know how to use a condom. Your wife had to suffer so much!” Upon this, the man was startled and declared,” It is not possible. I have never used a condom in my life!!”

Subsequently, as expected, there was serious disharmony between the couple and eventually, proceedings for divorce followed. The patient filed a malpractice suit against the doctor claiming a huge sum as damages for suffering on account of breach of professional secrecy. She also lodged a complaint before the Medical Council. The case was settled out of court with the Gynecologist paying the lady an undisclosed sum of money.

An airline pilot underwent a coronary angioplasty followed by an emergency coronary bypass. Because of some post-op problems, the patient made allegations of negligence and filed a complaint before a Consumer Forum. While preparing for their defense, the plaintiffs i.e. the cardiologist and the hospital learnt that he had undergone coronary angiography a couple of years ago at another hospital but had concealed the fact. Since this information was vital for their defense, they got a copy of the report (through personal contact) from the hospital where this had been done and produced the same in the court. However, the patient was furious that the second hospital had divulged his medical records unauthorized to someone else without his consent and thereby breached confidentiality. He promptly filed another case against the second hospital on this score.

A lady underwent an MTP by a gynecologist, the patient's husband was away in Dubai for over a year, a fact which was not known to the doctor. When the couple came to meet the doctor after his return, a month or so later the doctor casually mentioned to him the fact about the termination of the pregnancy. A severe marital discord followed thereafter. 

The gynecologist started receiving threatening legal notices, for having breached patient confidentiality resulting in immense damage. However, she did not pursue the matter after some time and the doctor heaved a sigh of relief. The fate of the marriage was unknown.

The right to privacy is guaranteed to an individual, with certain exceptions, under the Indian Constitution.

In India, there are two specific provisions that forbid doctors from disclosing any information relating to a patient. As per The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, section 2.2 Patience, Delicacy and Secrecy, “Confidences concerning an individual or domestic life entrusted by patients to a physician and defects in disposition or character of patients observed during medical attendance should never be revealed.

Chapter 8 of the Rules states that if any medical practitioner violates the Physician-patient privilege then the Medical Council of India ( MCI) can take any action as it deems fit against the registered medical practitioner in question, once he/she is held guilty after the inquiry. MCI can also “direct the removal altogether or for a specified period”

Another legal provision pertaining to confidentiality is contained in the Indian Evidence Act 1832 which can sometimes be invoked, though it specifically deals with  the Privileged communication between a lawyer and his client, which is not dissimilar to that between a doctor and a patient.

From the narrative of the above 4 cases, the following conclusions can be easily drawn:

📌As a rule confidentiality of a patient should not be breached even if it is to a spouse, without the express consent of the patient himself or herself. I will discuss the exceptions later on.

📌The staff of the medical establishment must be primed to the importance of patient confidentiality and the risks of not observing it. It is important to do so because as in Case No. 1 above, vicarious liability for the same will be fastened to you- the employer.

📌Hospitals should not share patient information with any third party without the patient's written permission- be it an insurance company or employer or family member.

Under the MTP Act, the doctor is prohibited specifically from revealing the identity of the patient even in the mandatory reports sent to the local authorities.

The Act specifically prohibits revealing the identity of the patient. Stringent action is provided for in the Act.

PRIVACY: A registered medical practitioner may only reveal the details of a woman whose pregnancy has been terminated to a person authorized by law. Violation is punishable with imprisonment up to a year, a fine, or both. 

                    

A particularly sensitive situation prevails whilst treating patients of social importance, public figures, or celebrities. Medical confidentiality assumes even greater importance and those doctors and hospitals finding themselves in such situations should exercise great caution. Often, since the medical status of the concerned person is of interest to the public, it assumes ‘news’ value and finds its way in the public domain through various media channels. 

The release of this medical information, if at all, should be done officially, preferably by a designated/authorized spokesperson of the medical establishment and importantly, after having obtained consent from the patient and/or the relatives of the patient. It is possible that the patient and his/ her family do not wish the medical details to become public knowledge or only to a limited extent as specified by them. This should be honored as they too have a right to privacy.  There are many examples of unpleasant consequences following such breach of confidentiality.

Sometime back, a member of the treating team of doctors of a celebrity patient in a corporate hospital unauthorizedly leaked out to the media some medical details of the patient. The family of the patient was furious and demanded action against the doctor. As a consequence of this, the doctor lost his job, but not before learning the importance of medical confidentiality.

Quite understandably, the need for confidentiality is even greater in psychiatric practice and consequently, medico-legal issues on this score must be averted. The trust factor is extremely important because patients need to be comfortable discussing their personal thoughts and feelings, relationships, emotions that may even pertain to their family members. Sometimes information about third parties may be very sensitive and may include details of intimate relations, sexual transgressions, and so on. Hence breach of confidentiality could have serious repercussions and should be scrupulously avoided.

 In India, The Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002 regulate the conduct of medical professionals. 

Rule 7.14 of these regulations provides that the secrets of a patient that the registered medical practitioner has learned during the exercise of his/her profession cannot be disclosed. Few exceptions to this rule are:

✅When a presiding judge in a court orders to disclose the privileged communication

✅When there exists a serious risk to a specific person and/or community

✅In case of a notifiable disease concerned public authorities should be immediately informed. Public interest can override the right to confidentiality

  

The following case exemplifies the point no. 2 of rule 7.14 of the Medical code of ethics (as stated above):

Dr. Tokugha Yeptomi, hailing from Nagaland and  a medical graduate from JIPMER, Chandigarh and Asst Surgeon at the Nagaland State Health Service accompanied his uncle to Apollo Hospital, Chennai, who was to be operated on for aortic aneurism. Since the patient required blood transfusions, Dr. Tokugha agreed to donate blood and gave his blood samples for grouping and cross-matching. As it turned out the blood tested positive for HIV. 

Incidentally, Dr. Tokugha was engaged to get married after 6 months. A doctor from Apollo hospital informed his fiancé that the person she was going to marry was HIV positive. As a result, the marriage was called off.

Aggrieved by this unethical breach of confidentiality and revealing his personal medical information to his fiancé resulting in cancellation of his marriage and social ostracisation, he filed a complaint before the National Consumer Disputes Redressal Commission. This was rejected and he was asked to seek a civil remedy. 

Accordingly, he filed an SLP in the Supreme Court. In brief, the SC ruled as below:

The rule of confidentiality is subject to the exception when the circumstances demand disclosure of the patient’s health in public interest, particularly to save others from immediate and future health risks.

Further, the right of privacy of a person was also not held to be an absolute right, particularly when the fact of a person’s health condition would violate the right to life of another person.

If the fact of the appellant being HIV positive had not been disclosed to the appellant’s fiancé with whom the appellant was likely to be married, she would have been infected with dreadful disease if the marriage had taken place and consummated.

The appeal was, therefore, dismissed. This was a landmark judgment but one that was criticized by a lot of NGOs and social activists.

Another example of the  exemption  from medical  confidentiality pertains to psychiatry. In the course of a consultation, a patient told his Psychiatrist that he planned to commit suicide the same night. 

Despite being a privileged patient-doctor communication, he informed the relatives of the patient who were told to keep a watch. As a result, an attempt to commit suicide by the patient was foiled.  

A breach of confidentiality may be justified on rare occasions in order to promote the best interests and safety of the patient or other people. Psychiatrists may have a duty to inform the intended victim(s) and/or relevant authorities.

Another example of exemption from confidentiality is that under POCSO, pregnancy in a minor girl must be reported to the Police since an offense of rape had taken place.

🔰Make sure patient records are not kept in publicly accessible areas

🔰Staff should be sensitized and primed on importance of confidentiality

🔰If medical data of patients is used by you for research or writing clinical papers, make sure patients can’t be identified and if necessary , their consent is taken.

🔰Photographs of patients should be anonymous and unidentifiable

🔰Patient records should be kept in secure storage places.

🔰Electronic medical records should be encrypted and pass word protected

📌Issues of integrity, security, privacy and confidentiality in Electronic Health Records are vital because of the sensitive nature of the patient data. Breach of this can lead to litigation of the healthcare providers who are clearly responsible for the data protection.

📌The Ministry of Health and Family Welfare has prepared a draft for Digital Information Security in Healthcare Act (DISHA) with an aim to secure the healthcare sector data in India, giving people complete ownership of their health data. However, it is awaiting legislation.

📌As per Telemedicine guidelines Doctors who provide teleconsultation should not disclose or transfer any information that may identify the patient without the prior written consent of the patient.

As a finale to this blog, I would like to conclude by referring to a very fascinating historical example of strict adherence to professional ethics by a very eminent physician of pre-independence India.

Mohammed Ali Jinnah, the founder of Pakistan, was the patient of a very eminent physician in Mumbai (then Bombay) whose name was Dr. Jal Patel. Just a year before the partition of India, Dr. Patel noticed a number of lung opacities in the Chest X-ray of Mr. Jinnah. The diagnosis was tuberculosis and Dr. Patel prognosticated that Jinnah would live for 2 or 3 years at the most. Had this secret been revealed to the Hindu leaders, many historians feel, the partition of India would never have occurred as they could have prolonged the discussions with the British. But Dr Jal Patel stuck steadfastly to his professional ethics and kept this information confidential despite knowing its historical impact!

I gleaned this fascinating information in the book FREEDOM AT MIDNIGHT by Larry Collins and Dominique Lapierre --- a book all those interested in the history of India must-read.

©Dr. Lalit Kapoor 

About the Author 

Dr. Lalit Kapoor is a General Surgeon practicing in Mumbai. He is the founder of the Medico-Legal Cell, Association of Medical Consultants and is a medico-legal expert assisting affected members with medico-legal problems for over four decades. He is also the author of the book Better Safe than Sorry- Medico-Legal Do& Don'ts

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