Apr 282015
 
 April 28, 2015  Healthcare, Non-U.S.

Earlier this month, I pointed out a case in India involving the confidentiality of mental health records and how right to information laws there might trump the right to privacy. Like many countries, India was looking at balancing rights and needs.  Based on what I had read in that article, I wrote:

It seems the wife was being beaten by the husband and had requested his records from the facility treating him, who had declined, citing confidentiality.

But does her situation really justify breaching his confidentiality by turning over his records? In India, is there a duty to warn or duty to protect that the facility could have used to disclose information to her if they felt she was at imminent risk of violence? And if they didn’t feel that there was anything they could disclose that would help her protect herself, should they have been required to disclose?

Today, I found more on the case and ruling in Hans-India. It turns out that the right to information in that case may not have been based on protecting herself from violence as much as her right to obtain a divorce under certain conditions:

If a spouse is subjected to suffering because of incurable disease of other spouse, it is a ground for divorce. Section 13(i)(v) of the Hindu Marriage Act, 1955, provides that a marriage can be dissolved on the ground that the other party 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

 

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 continuously 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.

 

So there were two arguments that could possibly justify accessing his mental health records, it seems: (1) public money was spent on his treatment, which means there’s a presumption of transparency, and (2) his illness was affecting her rights. Arguing against disclosure was the confidentiality of mental health records and what disclosure could do to a patient (e.g., could it provoke suicide?), could it erode public confidence in seeking treatment if it’s not going to be kept confidential?

The Commissioner’s ruling continued:

 

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. Where two rights which are parts of Article 21- right to privacy and right to healthy life free from injury or disease are conflicting, the public morality and public interest should decide which right to prevail.

Hence I (as the Central Information Commissioner) have decided that there is a larger public interest that required disclosure of medical records of a patient as mandated under Section 8(1)(j) and directed 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.