Can I sue for breach of doctor-patient confidentiality?
Doctors, in the course of their work have the right to interrogate a person or patient to gain as much information as possible in order to make a well-informed diagnosis.
Hi Wakili
I have been battling a delicate medical condition for a while now. The other day, my friend asked me about it and I was shocked because I have been keeping it under wraps for years. I asked him how he came to know about it and he told me that my doctor mentioned it. Apparently, they are friends. The doctor breached doctor -patient confidentiality. How do I address the matter? Can I keep my friend from spreading this sensitive information?
Hi,
In any given transaction where a personal file is established, in which information is documented and processed there is a presumption of confidentiality. The rope that hangs those unable to maintain confidentiality of their clients’ whatever-nature-information is thicker, handled by a hangman who gladly takes a walk when the noose tightens. The medical fraternity, similar to legal is tasked with a higher threshold when it is about confidentiality. The sanctity of their relationship with clients is the reflection of privacy in its simplest and most sacred manifestation.
Every person in Kenya, is bound by the Bill of Rights under the Constitution. Your recourse is well defined. First, Article 22 (1) of the Constitution provides everyone an opportunity and right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed, or is threatened. This is where it begins.
Further at Article 32 (1-c), the Constitution provides for the right to privacy. It states that every person, has the right not to have information relating to their family or private affairs unnecessarily required or revealed. In the first instance, the doctor required information about your health revealed for the purpose of offering you treatment. Doctors, in the course of their work have the right to interrogate a person or patient to gain as much information as possible in order to make a well-informed diagnosis, and consequently design a responsive treatment roadmap. This treatment road map is very personal as it responds to the needs of a particular individual. This is the reason behind the patient’s personal file.
Looking at the healthcare industry, it is important to draw some ethical consideration that are part of the professional decorum. Section 11 (1) of the Health Act provides as follows, information concerning a user, including information relating to his or her health status, treatment or stay in a health facility is confidential except where such information is disclosed under court order or informed consent for health research and policy planning purposes. According to the Ministry of Health Patients’ Right Charter of 2013, it is provided at Chapter one, that the right to confidentiality shall be upheld, except where consent has been expressly given, or disclosure is allowed by law or in public interest. Confidentiality shall be maintained even after the patient’s death.
Medical and health information of a patient should be regarded as sensitive. Section 2 of the Data Protection Act provides sensitive data to mean, data that reveals the natural person's race, health status, ethnic social origin, conscience, belief, genetic data, biometric data, property details, marital status, family details including names of the person's children, parents, spouse or spouses, sex or the sexual orientation of the data subject.
It should be understood that these provisions of law are not absolute, as was discussed in Petition number 78 of 2014. It was noted “that the right to privacy is not absolute. Implicit in the protection accorded is that information relating to family and private matters must not be “unnecessarily revealed.” Indeed, counsel for the petitioner submitted that there are instances where the right to privacy in respect of the patient/client relationship may be abridged.
It is provided at Section 11 (2) of the Health Act, circumstances under which disclosure can be preferred as an option. Such exemption is when, non-disclosure will represent or pause serious threat to public health, or when such disclosure may address a proven instance threatening national security. Other circumstances are when the owner of the information provides written consent or a court order is announced to release such confidential information.
There are previous court and tribunal decisions that may give you a spark of confidence to follow through this matter. Inherent human dignity is the premise upon which you can derive your argument, while driving your submission in court.
Article 28 of the Constitution demands for the respect and protection of every person’s right to inherent dignity. In some given conditions, certain levels of disclosure may pose a serious danger or potential violence to an individual’s life, and this must be curtailed from happening.
It is left to you to decide whether the disclosure between your doctor and friend discredited Lord Bingham’s assertion of disclosure in the matter of W v Edgell [1990] 1 ALL ER 835, when he stated: a real and serious risk of danger to the public must be shown for the exception to apply; disclosure must be to a person who has legitimate interest to receive the information: and disclosure must be confined to that which is strictly necessary.
While all these is possible, you must get your evidence together, since failure to prove this in court may lead to other counter suits in form of defamation or character and career assassination.
Eric Mukoya has over 17 years’ experience working in the social justice sector. He’s the executive director of Undugu Society of Kenya. Legal query? Email [email protected]
