CENTRAL INFORMATION COMMISSION
(Room No.315, BWing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066)
Prof. M. Sridhar Acharyulu (Madabhushi Sridhar)
Ms Jyoti Jeena v. PIO, Institute of Human Behavior & Allied Science
Important Dates and time taken:
RTI: 31.7 .2014 Reply: 14.8.2014 Time:14 days
FAA:20.8.2014 FAO: 24.92014 Time: 34 days
SA: 10.12.2014 Hearing: 26.03.2015 Decision:1042015
1. Appellant is present along with his brother Mr Deepak Jeena. Public Authority is represented by Mr S.P Jaiswal, PIO.
2. Appellant through his RTI application had sought for copies of all papers, documents, records, old paper, case history records etc available with IHBAS in relation to her husband Shri Sanjay Singh. PIO replied that information is related to the psychiatric medical information, thus exempted under section 8(1)(e). Being unsatisfied with the CPIO reply, the appellant preferred First Appeal. FAA directed the MRO/Deemed PIO to furnish information. In compliance of the FAA order PIO enclosed the copy of information vide ltr dt 31.10.2014.Being unsatisfied with the information furnished, the appellant has approached the Commission in Second Appeal.
Proceeding before the Commission
3. This is a case where a wife is seeking the information about the medical records of her husband, who alleged to have physically tortured her due to his mental illness. The appellant and her brother alleged that husband and his relatives have suppressed the truth about his mental health to cheat her into marriage, which proved a hell for her thereafter.
4. It is a fact that husband was treated at respondent’s hospital as borne by medical record which she was asking for. Mrs Jyoti Jeena sought for copy of all the papers, documents, records, old reports, case history reports, opinions/advices, prescriptions etc., available in the file/folder maintained by the IHBAS in respect of about Sanjay Singh (husband). The PIO claimed that the information sought being psychiatric medical record of another person and hence exempted under Section 8(1)(e) of the RTI Act 2005.
5. After hearing Deepak Singh Jeena, brother of appellant, the First Appellate Authority stated that the medical record was held by public authority in capacity of fiduciary relationship and the information belonged to third party. However the FAA advised the deemed PIO, the MRO that the copies of the old medical records of the patient, if brought by the Appellant at the time of treatment/admission, after due verification, be provided to the appellant. The FAA also advised the public authority to develop a framework for maintaining the source of old records made available to IHBAS teams by various family members. The FAA has accepted partly modified request from appellant and ordered old records to be given to wife of patient. Order was complied with.
6. She came in second appeal for ‘complete record’. The PIO submitted that right to privacy of patient is part of his right to life and three CIC decisions opposed invasion of that right by disclosure. In their written submission Respondents contended:
1. Psychiatric Case Records contain information about emotional disorders, history of suffering of patient.
2. Psychiatrist has to maintain Neutrality & Confidentiality with patient and family members. He owes duty of confidentiality as he received information in fiduciary capacity. Disclosure of information shared by them with psychiatrist should not be disclosed which would invade the right to privacy as explained by Supreme Court in Kharak Singh v State of UP (AIR 1963 SC 1295)
3. Psychiatric case records cannot be equated with ordinary medical records. Access to full records might provoke serious reactions, including attempt to suicide.
4. India does not have statute like one in UK Access to Health Records Act 1990. According to ‘Geriatric Psychiatric Outpatient Care: The Private Practice Model in the USA’ authored by Eliott M Stein and Gary S Moak in the text book “Principles and Practice of Geriatric Psychiatry, 3rd Edition, the family, relatives or friends are important source of information. If access to information is provided they may refuse to be involved and thus disrupt treatment.
5. The Principles of Medical Ethics in the US have gone to the extent of protecting information from disclosure even when the patient informs the doctor that he might kill someone. According to Claire Zilber MD om his article “Ethics and the Doctor Patient Relationship”, it is prescribed that in the principles of medical ethics that the doctor can inform of the intended target, but even in such situations one must disclose only relevant information about the threat and that the privacy of the patient should be protected.
6. As per Health Insurance Portability and Accountability Act HIPAA of 1996, psychotherapy notes prepared by mental health professional, requires proper authorization then only it can be disclosed to any third party.
7. The Indian Psychiatric Society formulated Clinical Practice Guidelines for Psychiatrists in India, 2004, section relating to Human Rights and Privileges of Mentally Ill Persons, revealing medical records can put the safety of others from whom information is obtained at risk. The professionals are required to maintain confidentiality to all verbal, recorded or computer stored material.
8. Psychiatric case record is not exclusively related to a patient; rather a significant number of people are involved. So it is neither in the interest of the patient nor of the other person interviewed by a mental health professional to disclose the content. The psychiatric record is creaed with the understanding by both parties that its purpose is strictly therapeutic and not to be used for legal purposes except under very limited specific circumstances, even after the termination of treatment or death of the patient. It is the moral, ethical and legal duty of a Psychiatrist to maintain confidentiality in therapeutic relationship and in ‘compartments’ with significant other family members in life or after death of the patient because of the sensitive personal and private nature of the information shared with the professional. It is submitted that the concept of Compartmentalized Confidentiality will have to be considered as the basis for exemption of all Psychiatry/Mental Health care records under Section 8(1)(e) of the RTI Act.
9. The Mental Health Act 1987, in India section 13(1) states that Inspector of psychiatric hospital or nusing home require to keep confidentiality in relation to personal records of patient. As per s 38 even visitors cannot be allowed to inspect records of patients.
7. In Mr. Surupsingh Hrya Naik vs State Of Maharashtra decided on 23 March, 2007,AIR 2007 Bom 121, a private citizen sought from the Public Information Officer of Sir J.J. Hospital, Byculla, Mumbai, the medical reports of Mr. Naik, legislator who was convicted for contempt of court. Appellant claimed that it was in public interest to know why a convict is allowed to stay in an air conditioned comfort of the hospital and there had been intensive questioning about this aspect in the media and the peoples mind. There is, therefore, a legitimate doubt about the true reasons for a convict being accommodated in air conditioned comfort of the hospital, thereby ensuring that the convict escapes the punishment imposed on him and also denies a scarce facility to the needy.
8. Following are the relevant the provisions of the Right to Information Act.
Section 2(f) which defines “information”, reads as under:
2(f) “information” means any material in any form, including records,
documents, memos, emails, opinions, advices, press releases, circulars,
orders logbooks, contracts, reports, papers, samples, models, data material
held in any electronic form and information relating to any private body which
can be accessed by a public authority under any other law for the time being in
Section 2(j) which defines “right to information” reads as under:
2(j) “right to information” means the right to information accessible under this
Act which is held by or under the control of any public authority and includes
the right to
(i) inspection of work, documents, records;
(ii) taking notes, extracts or certified copies of documents or records;
(iii) taking certified samples of material;
(iv) obtaining information in the form of diskettes, floppies, tapes, video
cassettes or in any other electronic mode or through printout where such
information is stored in a computer or in any other device.
Section 2(n) defines “third party” which reads as under:
2(n) “third party” means a person other than the citizen making a request for
information and includes a public authority.
Section 3 of the Act reads as under:
3.Right to information: Subject to the provisions of this Act, all citizens shall
have the right to information.
Section 4 deals with obligations of public authorities and the maintenance of records. A
person who desires to obtain information can do so considering Section 6, by making a
request in writing in the language set out therein.
Section 6(2) is material and reads as under:
6(2) An applicant making request for information shall not be required to give
any reasons for requesting the information or any other personal details except
those that may be necessary for contacting him.
Under Section 7, the concerned Public Information Officer as expeditiously as possible and in any case within 30 days of the receipt of the request either provide the information or reject the request for the reasons specified in Sections 8 and 9. We are really not concerned with Section 9 as it pertains to information involving infringement of copyright subsisting in a person other than the State. We then have for our consideration the relevant portion of Section 8, which reads as under:
8.(1) Notwithstanding anything contained in this Act, there shall be no obligation
to give any citizen,
(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 PROVIDED that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.
Section 11 deals with third party information and sets out, that where an Appropriate Information Officer 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, the concerned Public Information Officer shall give a written notice to such third party of the request, informing that he intends to disclose the information on record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in mind while taking a decision about disclosure of information. Under Section 18 certain powers have been conferred on the appropriate Information Commission to receive and inquire into a complaint from any person. In doing so certain powers as vested in the Civil Court while trying a suit have been conferred on that authority. The next relevant provision is Section 19 which we shall reproduce to the extent necessary, which read as under:
(1) Any person, who does not receive a decision within the time specified in Subsection (1) or Clause (a) of Subsection (3) of Section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may, within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer, as the case may be, in each public authority. (2) Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the Page 0851 case may be, under Section 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from the date of the order.
(4) If the decision of the Central Public Information Officer or State Public Information Officer, as the case may be, against which an appeal is preferred relates to information of a third party, the Central Information Commission or State Information Commission, as the case may be, shall give a reasonable opportunity of being heard to that third party.
(5) In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request.
9. A consideration of these provisions would indicate that ordinarily the information sought for by a person must be made available and such person need not give reasons for the information he seeks. Another important aspect of the matter is that in respect of information relating to a third party the concerned Public Information Officer must give notice to the third party and if such third party makes submissions then to consider the said submissions.
10. The medical records of a person are generally confidential, considering the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002 framed under the provisions of the Indian Medical Council Act, 1956, which hereinafter are referred to as the Regulations. Regulation 2.2 which is relevant, reads as under:
2.2. Patience, Delicacy and Secrecy. Patience and delicacy should characterize the physician. Confidences concerning individual or domestic life entrusted by patients to a physician and defects in the disposition or character of patients observed during medical attendance should never be revealed unless their revelation is required by the law of the State. Sometimes, however, a physician must determine whether his duty to society requires him to employ knowledge, obtained through confidence as a physician, to protect a healthy person against a communicable disease to which he is about to be exposed. In such instance, the physician should act as he would wish another to act toward one of his own family in like circumstances.
It appears from this Regulation, that the information as sought, should not be revealed unless the revelation is required by the law of the State.
The next relevant Regulation is Regulation 7.14 which reads as under:
7.14. The registered medical practitioner shall not disclose the secrets of a patient that have been learnt in the exercise of his/her profession except:
(i) in a court of law under orders of the Presiding Judge;
(ii) in circumstances where there is a serious and identified risk to a specific person and/or community; and Page 0852
(iii) notifiable diseases. In case of communicable/notifiable diseases, concerned public health authorities should be informed immediately.
The Declaration of Geneva, adopted by the 2nd General Assembly of the World Medical Association, Geneva, Switzerland, September, 1948 and as amended thereafter, in which there is a provision pertaining to right to confidentiality of information about the patients health status, medical condition, diagnosis, prognosis and treatment and all other information of a personal kind with the exception, that descendants may have a right of access to information that would inform them of their health risk. (In this second appeal before CIC, the appellantwife of has life risk from the husband because of his mental illness) A citizen has a right “to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters.” The Supreme Court then observed as under: “18. THE right to privacy by itself has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case.”
In Mr. “X” v. Hospital “Z”, case the issue was disclosure of information of a patient affected by HIV. The person whose information was disclosed, sought an action in damages, by moving the National Consumer Disputes Redressal Commission which was rejected and then he appealed to the Supreme Court. In considering the duty to maintain confidentially, the Court observed that in doctorpatient relationship, the most important aspect is the doctor’s duty of maintaining secrecy and the doctor cannot disclose to a person any information regarding his patient, which he has gathered in the course of treatment nor can the doctor disclose to anyone else the mode of treatment or the advice given by him to the patient.
Supreme Court said: The Code of Medical Ethics, carves out an exception to the Rule of confidentiality and permits the disclosure in the circumstances enumerated in the judgment under which public interest would override the duty of confidentiality particularly where there is an immediate or future health risk to others. Dealing with the aspect of privacy, the Court observed as under:
27. 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.
Bombay High court explained: The right to privacy now forms a part of right to life. It would, therefore, be apparent on a reading of Regulation 2.2 and 7.14 framed under the Medical Council of India Act that information about a patient in respect of his ailment normally cannot be disclosed because of the Regulations, which is subordinate legislation except where the Regulation provides for. The Right to Information Act, is an enactment by Parliament and the provisions contained in the enactment must, therefore, prevail over an exercise in subordinate legislation, if there be a conflict between the two.
11. The exception from disclosure of information as contained in Section 8 has some important aspects. Section 8(1)(j) provides that 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 shall not be disclosed unless the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied, that the larger public interest justifies the disclosure of such information. In other words, if the information be personal or would amount to invasion of privacy of the individual, what the concerned Public Information Officer has to satisfy is whether the larger public interest justifies the disclosure. The court said that the Regulations framed under the Indian Medical Council Act, will have to be read with Section 8(1)(J) of the Right to Information Act. So read it is within the competence of the concerned Public Information Officer to disclose the information in larger public interest or where Parliament or State Legislature could not be denied the information.
12. Mr Naik was a convict, admitted in the general ward of the hospital and was put up in an air conditioned room and not in the Prisoners Ward. The right to receive medical treatment as a part of right to life, could not have been denied to the petitioner. The reasons for the information sought by the RTI applicant need not be gone into, as the Act itself under Section 6(2) does not require the applicant to give any reasons for requesting the information. The provisions of the Right to Information Act, will override the provisions of the Regulations framed under the Indian Medical Council Act to the extent they are inconsistent. The exercise of power under the Act in respect of private information is subject only to Section 8(1)(j) and the proviso.
13. The confidentiality required to be maintained of the medical records of a patient including a convict considering the Regulations framed by the Medical Council of India cannot override the provisions of the Right to Information Act. If there be inconsistency between the Regulations and the Right to Information Act, the provisions of the Act would prevail over the Regulations and the information will have to be made available in terms of the Act. The Act, however, carves out some exceptions, including the release of personal information, the disclosure of which has no relationship to any public activity or interest or which would cause unwarranted invasion of the right to privacy. In such cases a discretion has been conferred on the concerned Public Information Officer to make available the information, if satisfied, that the larger public interest justifies the disclosure. This discretion must be exercised, bearing in mind the facts of each case and the larger public interest. Normally records of a person sentenced or convicted or remanded to police or judicial custody, if during that period such person is admitted in hospital and nursing home, should be made available to the person asking the information provided such hospital nursing home is maintained by the State or Public Authority or any other Public Body. It is only in rare and in exceptional cases and for good and valid reasons recorded in writing can the information may be denied.
14. Duty to maintain confidentiality has its origin in the Hippocratic Oath, which is an ethical code attributed to the ancient Greek physician Hippocrates, adopted as a guide to conduct by the medical profession throughout the ages and still used in the graduation ceremonies of many medical schools and colleges: Hippocrates lived and practised as a Physician between third and first Century B.C. He has been referred to by Plato as a famous Ascleplad who had philosophical approach to medicine. His manuscripts, the Hippocratic Collection (Corpus Hippocracticum), contained the Hippocractie Oath which is reproduced below :
“I swear by Apollo the physician and Aesculapius and health and allheal and all the gods and goddesses that according to my ability arid judgment I will keep this path and this stipulation to reckon him who taught me this art equally dear to me as my parents, to Share my substance with and relieve his necessities if required, to look upon his offspring in the same footing as my own brothers and to teach them this art if they shall wish to learn it without fee or stipulation and that by precept, lecture, and every other mode of instruction I will impart a knowledge of the art to my own sons and those of my teachers and to disciples bound by a stipulation and oath according to the law of medicine but to none others. 1 will follow that system of regimen which, according to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous. I will give no deadly medicine to any one if asked nor suggest any such counsel, and in like manner I will not give to a woman a pessary to produce abortion. With purity and with holiness I will pass my life and practice my art, I will not cut persons laboring under the stone but will leave this to be done by men who are practitioners of this work, Into whatever houses I enter, I will go into them for the benefit of the sick and will abstain from every voluntary act of mischief and corruption, and further, from the seduction of females or males, of freeman and slaves, whatever in connection with rny professional practice, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge as reckoning that all such should be kept secret. While I continue to keep this oath unviolated, may it be granted to me to enjoy life and the practice of the art, respected by all men, in all times, but should I trespass and violate this oath, may the reverse be my lot.”
The Hippocractic 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 :
“Professional Conduct : (1) The Council may prescribe the standards of professional conduct and etiquette and a code of ethics for medical practitioners, (2) Regulations made by the Council under subsection (1) may specify which violations thereof shall constitute infamous conduct in any professional respect, that it is to say, professional misconduct, and such provision shall have effect notwithstanding anything Contained in any law for the time being in’ force.”
By the same Amending Act; clause (m) was also introduced in Section 33 and this clause 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
(a) 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,”
15. 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. Section 13(i)(v) of the Hindu Marriage Act, 1955 which provides as under :
“13(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party
(iii) 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.
Explanation .–In this clause,–
(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including subnormality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]
(iv) has been suffering from a virulent and incurable form of leprosy; or
(v) has been suffering from venereal disease in a communicable form; ….”
This right would positively include the right to be told that a person, with whom she was proposed to be married, was the victim of a deadly disease, which was sexually communicable or that has been incurably of unsound mind or has been suffering continu0usly or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably expected to live with the respondent. Since “Right to Life” includes right to lead a healthy life so as to enjoy all faculties of the human body in their prime condition, the respondents, by their disclosure that the husband of the appellant has such disease, in any way, either violated the rule of confidentiality or the right of privacy by not disclosing the same. Supreme Court said: Moreover, where there is a clash of two Fundamental Rights, as in the instant case, namely, the appellant’s right to privacy as part of right to life and Ms. ‘Y’s right to lead a healthy life which is her Fundamental Right under Article 21, the RIGHT which would advance the public morality or public interest, would alone be enforced through the process of Court, for the reason that moral considerations cannot be kept at bay and the judges are not expected to sit as mute structures of clay, in the Hall, known as Court Room, but have to be sensitive, “in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day” (See : Legal Duties : Allen) “AIDS” is the product of indisciplined sexual impulse. Similarly it is the duty of CPIO, First Appellate Authority and Information Commission to examine the right to life of the appellant and public interest in seeking the enforcement of her right to life which include right to divorce under legally permitted circumstances. 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.
16. 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.
Authenticated true copy (Babu Lal)
Deputy Registrar Addresses of the parties:
1. Ms. Jyoti Jeena HPT42, P and T Colony, Sarojini Nagar, New Delhi 110023
2. Institute of Human Behaviour and Allied Sciences Govt. Of NCT of Delhi, Dilshad Garden, Delhi 110095