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Confidentiality of medical information: Not question of chance, but legal requirement
2008-08-18 09:25:08
By Keregero Keregero
A fortnight ago we discussed the concept of secrecy as a legal requirement which ought to be observed by a banks` personnel.
But confidentiality is not only limited to the banking business alone; there are other professions that require the observance of confidentiality of information.
The medical and legal professions are examples of the professions in question.
Today, we examine confidentiality of information that comes in the hands of a medical personnel and, in the course of the process, we shall critically call into question, a recent suggestion by a member of the Union Parliament that confidentiality of information in HIV/AIDS treatment be thrown overboard as one way of fighting the pandemic!
According to a medical work titled ``Powers, Medical Negligence, 2nd Ed. Butterworths 1994 Ch.7, confidentiality is a duty owed by the individual confident to the confider.
In Medicine the duty of confidence is derived from the 4th CBC Hippocratic Oath. That Oath is to the effect that:
''..... whatever........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.`` A similar stance on confidentiality is also embodied in international instruments, notably the Declaration of Geneva (as amended in 1968) which states as follows:
``I will respect the secrets which are confined to me, even after the patient has died.``
Thus, in the case of HIV/AIDS pandemic, upon voluntary testing confidentiality of results becomes a critical issue.
This is meant to encourage people to volunteer for testing.
It has thus been observed that intentional or unintentional breaches of confidentiality destroy the trust that is essential between the testing programme staff and individuals/groups involved and may have a serious and sometimes irreversible effect on the programme.
Handling and storage of records must be such as can make it impossible for any undesired person to obtain results of and individual tested.
In the circumstances, confidentiality then should be the rule for results as well as counselling.
For, in situations where this principle is blown out of proportion and sero-positive people are let to be known within the community then they can be discriminated against in practice although the Constitution of the United Republic of Tanzania of 1977 bars discrimination.
It is important to note that the rationale of medical confidences remains paramount for three basic reasons.
In the case of HIV/AIDS pandemic it enables people living with it (PLHAs) to seek treatment without being stigmatised, which assurance is necessary for effective treatment of patient and also for maintaining patients` trust being the very means by which treatment is effected.
The fore going was clearly illustrated in Tarasoft v.Regent of the University of California, 17 Cal.1976.
It goes without saying that if the patient\'s right to confidentiality is not protected by law, then they will have no encouragement to speak openly to their medical practitioner and without reserve.
Thus, a doctor is responsible to the patient or person with whom he is in a professional relationship for the security and confidentiality of information given to him.
It is not only doctors who are duty bound to observe confidentiality. Others as already said include bankers, accountants, priests, and journalists, only to mention but a few; these are duty bound not to disclose without the consent of the patient or client communications or information obtained in a professional capacity, save in exceptional situations in the public interest as was stated by Boreham J. in Hunter v. Mann,[1974] QB 764,[1974] 2 ALL ER 414 DC.
This medical responsibility is both an equitable duty and one based on contract, express or implied, intended to safeguard the requisite confidence.
Thus, any policy or law which permits or requires disclosure of the results of HIV/AIDS test to third persons without the patient's consent or which permits expressly or impliedly, the improper disclosure by third persons of those results, also amounts to interference with privacy, within the meaning of the provisions of the The Dakar Declaration on AIDS: The Guidelines for Action, Senegal, 27th June -1st July 1994.
Such a policy of law goes against our country`s national policy on HIV/AIDS and can only be justifiable where it can be shown that it is necessary to protect public health.
Confidentiality is a crucial ethical issue because in the event of its breach and trespass on the person by doctors and others who divulge the sero-status of those suspected to be or are already HIV positive, it can lead to devastating effects as illustrated in Guide line 5 of the Handbook for Legislators on HIV/AIDS, Law and Human Rights, Executive Summary, UNAIDS/IPU, Geneva, Switzerland,1999 on Administration and protective laws at pages 64-78.
The Handbook refers to the chilling case of a NGO volunteer killed by a mob in South Africa just after she made a personal testimony about her HIV status on World AIDS Day!
The need for confidentiality was stated in the land mark case of X.V.Y[1988] ALL ER 648 CA as cited in Commonwealth Legal Education Association Newsletter Nos.62-63, July- October,1990.
In this case two doctors were diagnosed HIV positive.
A newspaper obtained the hospital records, which identified the doctors. However, the Court granted injunction restraining publication.
The Court of Appeal of England said it all:
``The public interest in preserving the confidentiality of hospital records outweighs the public interest in the freedom of the press to publish the information, because people with HIV must not be deterred from seeking appropriate testing and treatment.``
But the application of the principle of confidentiality in the medical profession has never been absolute. There are are circumstances which may lead to disclosure of confidential information and will not amount to the breach of a general duty of confidentiality.
These include situations: Where a Court required disclosure in evidence or where the production of medical records to a Court or Tribunal is required, that is, when information is required by the operation of the due process of the law.
It is also possible in instances where the patient gives his/her own consent, or where he or she goes public, when it is undesirable on medical grounds to seek a patient`s consent but in the patient`s interest, for the purposes of medical research and where information is required in public interest or for the safety of the public itself.
According to the General Medical Council of Britain of August,1988 disclosure without consent can be made to third parties only where the doctor judges that failure to disclose would put the health of any of the health team (or persons) to serious risk or to safeguard such persons(sexual partners) from possibility of fatal infection.
Disclosure can be made to other teaching/medical researchers or in cases of adverse drug reaction.
Compulsory testing leads to breach of confidentiality.
The loss of confidentiality in turn breeds the attendant dual vice of stigmatisation and discrimination, loss of employment, loss of care and protection, loss of human dignity, loss of spouse, loss of social contacts and isolationist tendencies against which we have to guard.
For, Principle 5 of the African Network on Ethics, Law and HIV or what is known as the Dakar Declaration 7th July 1994 states:
``Every person directly affected by the epidemic should remain an integral part of his or her community, with the right of equal access to work, housing, education and social services, with the right to marry, with freedom of movement, belief and association, with the right to counselling, care and treatment, justice and equality.
`` Thus, according to UNAIDS` call enunciated in ``From Principle to Practice:Greater Involvement of People Living with or affected by HIV/AIDS, (GIPA ) UNAIDS, Geneva, Switzerland,1999, there is need for changes in a wider society, whereby stigmatisation and discrimination must be transformed into tolerance and acceptance by information dissemination and awareness campaigns.
``Political, traditional and religious leaders have a major role to plat by bringing about these social changes.Parliamentarians, for example,can help to draw up anti-discrimination laws and national policies on AIDS and the work place.``
But together with the challenges and changes to be confronted, it must remain the absolute right of people to choose not to disclose their sero-status or their relationship to somebody infected by HIV/AIDS.
It is against this backdrop that I think, convinced as I am, that the Honourable Member of Parliament erred when he recently suggested that the principle of confidentiality be compromised in the fight against the pandemic.
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