In the light of the controversy surrounding the death of Sushant Singh Rajput and disclosures in the media regarding his mental health, the author raises some important questions about doctor-patient confidentiality and the disclosures in the media. What does the law say about confidentiality between doctor and patient in India?
By Dr KK Aggarwal
The late actor Sushant Singh Rajput’s (SSR) father, KK Singh, had filed a complaint before the Medical Council of India under Regulation 8.2 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, for professional misconduct committed by SSR’s psychologist Susan Walker. According to media reports, Singh’s complaint stated that any consultation between his son and registered medical practitioner Walker was strictly confidential and disclosure of the same would be misconduct under the Indian Medical Council regulations.
On August 1, 2020, in conversation with journalist Barkha Dutt, the therapist, Walker, had talked about SSR’s condition and how Rhea Chakraborty was his biggest support. Walker revealed that Sushant was suffering from depression and bipolar disorder. “In light of the misinformation and conspiracy theories currently raging on social media about Sushant Singh Rajput and Rhea Chakraborty, I have decided it is my duty to make a statement. In my capacity as a clinical psychologist and psychotherapist, I met Sushant and Rhea on several occasions in November and December 2019 and communicated again with Rhea in June of this year.
“Sushant was suffering from bipolar disorder, a severe mental illness that can be crippling for an individual during an episode. The symptoms of which can include severe anxiety, major depression and sometimes disordered thinking and paranoia.
“The continuing, appalling stigma around mental illness makes it very difficult for patients and their families to reach out. This has to stop. Mental illness is no different than cancer or diabetes. It can affect anyone, regardless of class, financial status in a way that cancer can,” she said.
It is important to understand the law relating to confidentiality between doctor and patient in India: 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 through the ages and still used in the graduation ceremonies of many medical schools and colleges.
The Hippocratic 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 the International Code of Medical Ethics laid down as under: A physician shall preserve absolute confidentiality on all he knows about his patient even after his patient has died.
In India we also have the Indian Medical Council Act, which controls medical education and regulates professional conduct. Under that Act, the complaint is likely to be dismissed for want of jurisdiction if Walker is not an MBBS doctor or she is not registered with the Medical Council of India. Section 20A, which was inserted by the Indian Medical Council (Amendment) Act, 1964, provides as under:
The Council may prescribe the standards of professional conduct and etiquette and a code of ethics for medical practitioners.Regulations made by the Council under sub-section (1) may specify which violations thereof shall constitute infamous conduct in any professional respect, that is to say, professional misconduct, and such provision shall have effect notwithstanding anything contained in any law for the time being in force.The standards of professional conduct and etiquette and code of ethics to be observed by medical practitioners.
It is under these provisions that the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, has made it mandatory for doctors to observe the privacy and secrecy of the patient. The doctor (MBBS) can only disclose information about the patient in three situations i.e. (i) as required by law, (ii) notifiable disease and (iii) where there is identified risk to a specific person and/or community. In case of communicable/ notifiable diseases, concerned public health authorities should be informed immediately.
According to Regulation 2.2 of Regulations 2002, one of the duties of a physician or doctor towards their patient is to maintain secrecy. The relevant regulation says: “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 laws 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.”
Regulation 7 of Regulations 2002 deals with misconduct of doctors. It enumerates acts of commission or omission on the part of the physician which shall constitute professional misconduct rendering him/her liable to disciplinary action. One such misconduct is when the physician or doctor discloses the secrets of a patient except in the three situations mentioned earlier.
Further, a physician/doctor/registered medical practitioner shall not publish photographs or case reports of his/her patients without their permission, in any medical or other journal in a manner by which their identity could be made out. If the identity is not to be disclosed, the consent is not needed.
The United Nations Educational, Scientific and Cultural Organization (UNESCO) in its Universal Declaration on Bioethics and Human Rights addressed ethical issues related to medicine, life sciences and associated technologies as applied to human beings, taking into account their social, legal and environmental dimensions. Article 9 of the Declaration talks about privacy and confidentiality which says: “The privacy of the persons concerned and the confidentiality of their personal information should be respected. To the greatest extent possible, such information should not be used or disclosed for purposes other than those for which it was collected or consented to, consistent with international law, in particular international human rights law.” Also, as per Rule 3 of the Information Technology Reasonable Security and Practices and Procedures and Sensitive Personal Data or Information Rules, 2011, the information relating to the health of an individual is considered sensitive personal data or information.
The Supreme Court of India in the matter titled Mr X vs Hospital Z vide judgment dated September 21, 1998 has held that “It is true that in the doctor-patient relationship, the most important aspect is the doctor’s duty of maintaining secrecy. A 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.”
Further, in Mr X vs Hospital Z, the Court observed: “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.”
Conclusion: Doctors cannot disclose the secrets of their patient to any person, not even to media. The doctor has to maintain secrecy and observe confidentiality and privacy regarding information about the patient except when relating to the three exceptions—required by law, notifiable diseases and identified specified risk to the patient. The jury is still out on whether Walker broke the Hippocratic Oath.
—The writer is President, Confederation of Medical Associations in Asia and Oceania, and former National President, IMA
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