Health and Privacy PDF

DRAFT
Health Privacy
INTRODUCTION
Confidentiality and privacy are essential to all trusting relationships, such as that between
patients and doctors. Moreover, in a healthcare context, patient confidentiality and the
protection of privacy is the foundation of the doctor-patient relationship. Patients must
feel comfortable sharing private information about their bodily functions, physical and
sexual activities, and medical history.1 Healthcare personnel must acquire, process, store,
retrieve and transfer clinical, administrative and financial health information as
healthcare is an extremely information intensive and sensitive industry. The unfortunate
aspect of the robust data flows is the inherent problem of the misuse of information,
disclosure of confidential information and risk of privacy violations.
Medical confidentiality promotes the individuals medical autonomy, by sheltering those
seeking morally controversial medical care from outside criticism and interference with
decisions.2 Medical privacy involves informational privacy (e.g., confidentiality,
anonymity, secrecy and data security); physical privacy (e.g., modesty and bodily
integrity); associational privacy (e.g. intimate sharing of death, illness and recovery);
proprietary privacy (e.g., self-ownership and control over personal identifiers, genetic
data, and body tissues); and decisional privacy (e.g., autonomy and choice in medical
decision-making).3
Privacy violations in the healthcare sector that stem from policy and implementation gaps
include: disclosure of personal health information to third parties without consent,
inadequate notification to a patient of a data breach, unlimited or unnecessary collection
of personal health data, collection of personal health data that is not accurate or relevant,
the purpose of collecting data is not specified, refusal to provide medical records upon
request by client, provision of personal health data to public health, research, and
commercial uses without de-identification of data and improper security standards,
storage and disposal. The disclosure of personal health information has the potential to be
embarrassing, stigmatizing or discriminatory. Furthermore, various goods such as
employment, life, and medical insurance, could be placed at risk if the flow of medical
information were not restricted.4
However, there are certain situations where disclosure of personal health information is
permitted, for example: 1) during referral, 2) when demanded by the court or by the
1
Mishra, N., Parker, L., Nimgaonkar, V., & Deshpande, S. (2008). Privacy and the Right to Information Act, 2005. Indian Journal of
Medical Ethics, 5(4), 158-161.
2
Allen, A. (2011). Privacy and Medicine. in E. N. Zalta (Ed.), The Stanford Encyclopedia of Philosophy (2011st ed.). Retrieved from
http://plato.stanford.edu/archives/spr2011/entries/privacy-medicine/
3
Allen, A. (2011). Privacy and Medicine. In E. N. Zalta (Ed.), The Stanford Encyclopedia of Philosophy (2011st ed.). Retrieved from
http://plato.stanford.edu/archives/spr2011/entries/privacy-medicine/
4
Nissenbaum, H. (2004). Privacy as Contextual Integrity. Washington Law Review, 79(1), 101-139.
1|Page
police on a written requisition, 3) when demanded by insurance companies as provided

by the Insurance Act when the patient has relinquished his rights on taking the insurance,
and 4) when required for specific provisions of workmen's compensation cases, consumer
protection cases, or for income tax authorities,5 5) disease registration, 6) communicable
disease investigations, 7) vaccination studies, or 8) drug adverse event reporting.6
LEGISLATION
Epidemic Diseases Act, 1897
The Epidemic Diseases Act, 1897 brought into force for the purpose of preventing the
spread of epidemic diseases. Implicit in the Epidemic Diseases Act, 1897 is the
assumption that in the case of infectious diseases, the rights, including the right to
privacy, of infected individuals must give way to the overriding interest of protecting
public health.7 Because of the nature of the Act, the principles of access and correction,
choice and consent, and notice do not apply to this Act.
Oversight
Inspection: Under the Epidemic Diseases Act, 1897,8 if any part of the state is
visited by, or threatened with an outbreak of any dangerous epidemic disease,
the state government can enforce certain measures and prescribe regulations to
prevent the outbreak or spread of a disease.9 Such measures may include
inspection of persons travelling by railway or otherwise, and the segregation, in
hospital, temporary accommodation or otherwise, of persons suspected by the
inspecting officer of being infected with any such disease.10 Additionally, the
Central Government may take measures including the inspection of any ship or
vessel and detention of any person leaving or arriving at any port.
Missing Principles
Accountability
Openness
Access and Correction
Choice and Consent
Notice
Penalty/Offenses/Liability/ Remedy
Quality/Verification
Security
Thomas, J. (2009). Medical Records and Issues in Negligence, Indian Journal of Urology: IJU: Journal of the Urological Society of
India, 25(3), 384-388. doi:10.4103/0970-1591.56208.
6
Plaza, J., & Fischbach, R. (n.d.). Current Issues in Research Ethics: Privacy and Confidentiality. Retrieved December 5, 2011, from
http://ccnmtl.columbia.edu/projects/cire/pac/foundation/index.html
7
UNDP (2004) Law, Ethics and HIV/AIDS in South Asia. A Study of the Legal and Social Environment of the
Epidemic in Bangladesh, India, Nepal and Sri Lanka.
8
The Epidemic Diseases Act, 1897.
9
The Epidemic Diseases Act, 1897. s. 2.1.
10
The Epidemic Diseases Act, 1897, s. 2.2(b).
5
2|Page
Disclosure
Purpose Limitation
Collection Limitation
Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations,

2002 (Code of Ethics Regulations, 2002)
The Medical Council of India (MCI) Code of Ethics Regulations11 sets the professional
standards for medical practice.
Security
Confidentiality: Physicians are obliged to protect the confidentiality of patients
including their personal and domestic lives12, unless the law requires their
revelation, or if there is a serious and identified risk to a specific person and / or
community or notifiable disease.13
Digitization of records: Efforts should be made to computerize medical records for
quick retrieval.14
Disclosure
Disclosure of prognosis: A contradictory clause requires physicians to ensure that
the patient, his relatives or his responsible friends are aware of the patients
prognosis while serving the best interests of the patient and the family.15
Disclosure of a patients prognosis should rest with the patient and not the medical
attendant.
Purpose Limitation
Data Retention: Physicians must maintain the medical records of their patients for
a period of three years.16 Failure to maintain medical records for three years
and/or refusal to provide medical records within 72 hours of the request
constitutes professional misconduct rendering the Physician liable for disciplinary
action. 17
Access to records: Patients, authorized attendants or legal authorities can request
for medical records, which have to be issued within 72 hours. 18
11
Code of Ethics Regulations, 2002 available at

http://www.mciindia.org/RulesandRegulations/CodeofMedicalEthicsRegulations2002.aspx.
12
Code of Ethics Regulations, 2002 Chapter 2, Section 2.2.
13
14
Code of Ethics Regulations, 2002 Chapter 1, Section 1.3.4.
15
16
17
18
3|Page
Records should not be made accessible to the attendants without the consent of
the patient, except when the patient is not in a state to give consent and access to
those records is imperative.
Choice and Consent
Informed Consent: Physicians must obtain written consent from the husband or
wife, parent or guardian in the case of a minor, or the patient himself, before
performing an operation. 19 When performing an operation, which may result in
sterility, informed and written consent is required from both the husband and
wife. 20
Consent for Research: Publication of photographs or case studies without consent
by patients is prohibited. If the identity of the patient cannot be discerned then
consent is not needed. 21
As a note, the method of consent, whether verbal or written, is not stated. This is
peculiar as other clauses specifically state, whether verbal or written consent, is
required.
Missing Principles
Notice
Oversight Accountability
Openness
Notice
Penalty/Offenses/Liability/Remedy
Case Law
Mr. Surupsingh Hrya Naik vs. State of Maharashtra,22 (2007)
Since the Code of Ethics Regulations are only delegated legislation, it was held in the
case of Mr. Surupsingh Hrya Naik v. State Of Maharashtra,23 that these would not
prevail over the Right to Information Act, 2005 (RTI Act) unless the information sought
for falls under the exceptions contained in Section 8 of the RTI Act. In this case health
records of a convict were sought to be made public under the RTI Act to find out why
hes been allowed to stay in hospital instead of jail. Dealing with the right to privacy in
this context the Bombay High Court held that:
The law as discussed may now be set out. The confidentiality required to be
maintained of the medical records of a patient including a convict considering the
19

21
22
http://www.indiankanoon.org/doc/570038/
23
20
4|Page
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.
In those cases where the information sought cannot be denied to either Parliament
or State Legislature, as the case may be, then the information cannot be denied
unless the third person satisfies the authority that Parliament/Legislature, is not
entitled to the information. There is no discretion in such cases to be exercised by
the concerned Information Officer. The information has to be either granted or
rejected, as the case may be. Every public authority, whose expenditure is met
partly or wholly from the funds voted by the Parliament/Legislature or
Government funds are availed off is accountable to Parliament/Legislature, as
they have interest to know that the funds are spent for the object for which they
are released and the employees confirm to the Rules. The conduct of the
employees of such an organisation subject to their statutory rights can also be
gone into. If patients are to be admitted in hospital for treatment then those
employees in the hospital are duty bound to admit only those who are eligible for
admission and medical treatment. The records of such institution, therefore,,
ought to be available to Parliament or the State Legislature. The
Parliament/Legislature and/or its Committees are entitled to the records even if
they be confidential or personal records of a patient. Once a patient admits
himself to a hospital the records must be available to Parliament/Legislature,
provided there is no legal bar. We find no legal bar, except the provisions of the
Regulations framed under the Indian Medical Council Act. Those provisions,
however, would be inconsistent with the proviso to Section 8(1)(j) of the Right to
Information Act. The Right to Information Act would, therefore, prevail over the
said Regulations.
Case Highlights
5|Page
The Right to Information Act, 2005 would prevail over an exercise in

subordinate legislation such as the MCI Code of Ethics.
The health records of a person in police or judicial custody, if admitted

to a State or government hospital during the custody, should be made
available under the RTI Act, and should be denied only in exceptional
cases for good and valid reasons.
Mental Health Act, 1987

In 1997, the National Human Rights Commission (NHRC) New Delhi carried out a
survey of the 37 mental hospitals in the country. The survey revealed that physical
infrastructure and living arrangements were inadequate in most hospitals. Patients rights
with respect to privacy and dignity were grossly violated. The Mental Health Act, 198724
was enacted to govern the law relating to the treatment and care of mentally ill persons.
The Act allows the Central Government to establish an Authority for the regulation,
development, direction, and co-ordination of mental health.25
Oversight
Inspection of records: Inspecting officers, who are authorized by the State
Government to inspect any psychiatric hospital or psychiatric nursing home, may
at any time, enter and inspect any psychiatric hospital and require the production
of any records.26 Additionally, they may interview in private any patient receiving
treatment and care to inquire about a complaint or if there is reason to believe the
patient is not receiving proper care and treatment.27 If the inspecting officer is
satisfied that the inpatient is not receiving proper treatment and care, he may
report the matter to the licensing authority.28
Inspection of living conditions: Visitors consisting of a medical officer,
preferably a psychiatrist and two social workers are required to conduct a joint
inspection on a monthly basis. They must analyze the living condition of every
patient and the administrative processes of the psychiatric hospital and/or
psychiatric nursing home.29
Visitor log: Visitors must maintain a book regarding their observations and
remarks.30
Standards governing the data retention, security and access regarding the book
and its contents do not exist.
Medical certificates: Medical certificates, issued by a doctor, and contain

information regarding the nature and degree of the mental disorder that warrants
24
The Mental Health Act, 1987.

The Mental Health Act, 1987, s. 3(2).
26
27
28
29
The Mental Health Act, 1987, s. 38.
30
The Mental Health Act, 1987, s. 40.
25
6|Page
the detention of a person in a psychiatric hospital or psychiatric nursing home.31

Confidentiality: Visitors are prohibited from inspecting any personal records of
in-patients, which in the opinion of the medical officer-in-charge are confidential
in nature.32 However, they may access medical certificates as well as the order of
admission of mentally ill in-patients.i
There exist two privacy implications surrounding this provision. Firstly, the Act
fails to define personal records. Therefore, it is conflicting as visitors can inspect
medical certificates but not personal records. Secondly, the medical officer-incharge has the power to determine which personal records are confidential in
nature. Such a test appears to be too subjective; instead there should be a set of
objective standards by which to adjudicate the inspection of personal records.
Disclosure
Disclosure of personal records by inspecting officers: An officer inspecting health

records of any possible facility under this act must not disclose the personal
records and health information of a patient so inspected. 33
Penalty/Offenses/Redress/Liability
If any person who contravenes any Imprisonment up to six months and/or a
provisions of the Act, for which no other fine of rs.500 ii
penalty is provided
Missing Principles
Security
Purpose Limitation
Choice and Consent
Notice
Accountability
Openness
Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection)

Act, 199434
The declining child sex ratio in India is so alarming that if the present trend continues it is
going to result in a demographic and social disaster.35 Consequently, the pre-natal
31

The Mental Health Act, 1987, s. 40, Proviso.
The Mental Health Act, 1987, s. 13(1), Proviso.
34
Also see the: Pre-Conception and and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996.
35
Josantony Joseph and Centre for Youth Development and Activities commissioned by UNFPA (2006). Reflections on the Campaign
against Sex Selection and Exploring Ways Forward. Retrieved from http://india.unfpa.org/drive/Reflections.pdf
32
33
7|Page
diagnostic legislation sanctions a blanket prohibition of sex selection, before and after
conception, specifically it prohibits the determination and disclosure of sex of the foetus
and prescribes criminal punishment for contravention.
Pre-natal diagnostic testing can be conducted only for the purpose of detecting any
abnormalities or diseases,36 however the person conducting the test must be satisfied that
any of the following conditions:
Over the age of thirty-five

Undergone two or more spontaneous abortions or foetal loss
Exposed to potentially teratogenic agents such as drugs, radiation, infection or
chemicals
Her or her spouse has a family history of mental retardation or physical
deformities.37
While the primary purpose of the Act is to prevent sex determination, the procedure that a
mother has to follow in order to avail pre-natal diagnostic testing is mandatory consent of
age, abortion history and family history. These conditions require a woman to reveal
sensitive information concerning family history of mental retardation or physical
deformities. This may provide grounds for a divorce or break up a family. A special
concern for privacy and confidentiality should be exercised with regards to disclosure of
genetic information.
Data Retention: All records of pregnant women who have undergone an ultra
sonography must be preserved for a period of two years. The Pre-Conception and
Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996
(PNDT Rules) require that when the records are maintained on a computer, the
person responsible for such record should preserve a printed copy of the record
after authentication.38
Oversight
Appropriate Authority: The Act allows for the appointment of an Appropriate
Authority by the State Government who, among other things, are responsible for
supervising the implementation of the Act such as granting licenses, investigating
complaints, enforcing standards, etc. They also have the power to summon
persons, issue search warrants, order production of documents.39
Penalty/Offenses/Redress/Liability
36 Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, s. 4(2). Pre-natal diagnostic
techniques shall be conducted for the purposes of detection of: chromosomal abnormalities, genetic metabolic diseases,
haemoglobinopathies, sex-linked genetic diseases, congenital anomalies any other abnormalities or diseases as may be specified by the
Central Supervisory Board.
37 Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, s. 4(3).
38
Thomas, J. (2009). Medical Records and Issues in Negligence. Indian Journal of Urology: IJU: Journal of the Urological Society
of India, 25(3), 384-388. doi:10.4103/0970-1591.56208.
39
PNDT Act, s. 17 and 17A.
8|Page
If any person who contravenes any Imprisonment up to three months and/or a

provisions of the Act, for which no other fine of rs.1,000. iii
penalty is provided
Missing Principles
Accountability
Openness
Security
Notice
Choice and Consent
Purpose Limitation
Disclosure
Quality/verification
Case Law
Radiological & Imaging Association v. Union of India,40 (2011)
On 14 January 2011 a circular was issued by the Collector and District Magistrate,
Kolhapur requiring the Radiologists and Sonologists to submit on-line form F under the
PNDT Rules. The Collector had also issued another circular dated 10 March 2010 in
which reference was made to the workshop of doctors, sonologists and radiologists for
installation of SIOB (silent observer) for all the sonography machines, as a part of `save
the baby' campaign for improving sex ratio in the district. Both these circulars were
challenged by the Radiological and Imaging Association, inter alia, on the ground that it
violates the privacy of their patients. Justifying that such a requirement would not violate
the right to privacy of the patients. Deciding the above issue in Radiological & Imaging
Association v. Union of India,41 Bombay High Court, 26-8-2011 the Court held as under:
35. As regards the allegation of invasion of privacy rights, it is amply clear from
the affidavit of the Collector and District Magistrate, that the images stored in the
silent observer are not transmitted on-line to any server and thus they remain very
much part of the ultra-sound machine on which the silent observer is embedded
and that the silent observer is to be opened only in the presence of the concerned
radiologist/sonologist/doctor incharge of the Ultra-sound Clinic.
Silent observer is an electronic device which is attached to Sonography machine.
In the event of the appropriate authority needing to check the sonographies which
have taken place through a particular machine, the appropriate authority i.e. the
Collector/the civil surgeon may himself or his authorized officer will have to
actually go to the site of the ultra-sound machine and it is only on the
authorization of Collector that the silent observer can be removed from a
40
41
9|Page
particular ultra-sound machine and only on putting the user name and password
under the control of Collector that the officer can actually see the sonographies
done with the ultra-sound machine on a Computer. Moreover, mere seeing of
these sonographies by lay person would be of no help and hence as per the
protocol made by appropriate authority under the Act, whenever the silent
observer is to be opened, presence of the concerned doctor at the sonography
center as well as a third expert doctor would be necessary. The protocol made by
the appropriate authority for seeing the results of the silent observer is annexed to
the reply affidavit at exhibit `C'.
36. In view of the above factual backdrop, the submission that there will be
violation of privacy rights is without any substance.
..
40. Having regard to the aforesaid principles and considering the matter in the
factual backdrop already highlighted hereinabove that the information contained
in `F' form submitted on-line is submitted only to the Collector and District
Magistrate and that except the authorized officer no third party can have access to
it and that the information contained in the silent observer remains embedded on
the ultrasound machine and that after analysis of the information contained in `F'
form submitted on-line, the appropriate authority or the officer authorised by the
authority has to access the information contained in the silent observer including
the visual images, we are of the considered opinion that there is no violation of
the doctor's duty of confidentiality or the patient's right to privacy. The contours
of the right to privacy must be circumscribed by the compelling public interest
flowing through each and every provision of the PC&PNDT Act, when read in the
background of the following figures of declining sex ratio in the last five decades
This case and the silent observer system is an excellent example of privacy by design,
even though the issue of privacy by design was not discussed by the Court at all.
Case Highlights
The use of Silent Observer system on sonograph machines has enough

safeguards to prevent any violations of the system and hence does not violate
any privacy rights.
The safeguards considered reasonable by the Court were i) information in
`F' form is submitted only to the Collector and DM and only an authorized
officer has access to it, ii) information in the silent observer remains
embedded on the ultrasound machine, iii) after analysis of `F' form, the
appropriate authority has to access the information contained in the silent
observer including the visual images.
Bringing the declining sex ratio of the country was considered as a
compelling public interest with which to circumscribe the right to privacy.
10 | P a g e
Medical Termination of Pregnancy Act, 197142

In India, a woman's right to abortion is not recognised under Indian law; instead, there are
liberal grounds under which women can seek an abortion.43 Therefore, decisional privacy
(e.g., autonomy and choice in medical decision-making) is not afforded to patients and
their families with regards to determining the sex of the baby. The Medical Termination
of Pregnancy Act, 197144 mandates abortion by a registered medical practitioner under
stipulated conditions.45
Choice & Consent
Written consent: To facilitate an abortion under the existing laws, a medical
practitioner must collect documents indicating consent. Consent assures the
clinician performing the abortion that the patient has chosen the abortion on her
own free will. Consent implies that the patient is aware of all her options, has
been counselled about the procedure, the risks and post-abortion care. If married,
the woman must provide written consent. The husbands consent is not required.
Written consent of the guardian is required if the woman is below 18 years or is a
lunatic within the meaning of the Indian Lunacy Act, 1912.46
Disclosure
Disclosure to medical officer: Medical practitioners are only allowed to disclose
information of those who have terminated a pregnancy to the Chief Medical
Officer of the State. Otherwise, the Act prohibits the disclosure of matters relating
to treatment for termination of pregnancy.47
Admission Register: The Medical Termination of Pregnancy Regulations
explicitly mandate data collection and processing. Hospitals have to maintain an
Admission Register of women who have terminated their pregnancy. It must be
destroyed on the expiry of a period of five years from the date of the last entry.48
Security
Anonymization: The Act stresses the importance of secrecy and security of
information. The medical practitioner is required to assign a serial number for the
42
Medical Termination of Pregnancy Amendment Act, 2002, Notification on Medical Termination of Pregnancy (Amendment) Act,
Medical Termination of Pregnancy Regulations, 2003 and Medical Termination of Pregnancy Rules, 2003.
43
http://www.lawyerscollective.org/wri.html
44
Medical Termination of Pregnancy Act (1971) Retrieved from http://bhind.nic.in/Sparsh_MTP-Act-1971.pdf
45
A pregnancy can be terminated if the continuance of the pregnancy would involve risk to the life or grave injury to the physical or
mental health of the pregnant woman or if there is substantial risk that, if the child were born, it would suffer from such physical or
mental abnormalities as to be seriously handicapped. In determining whether continuance of the pregnancy would involve a risk of
injury to the health of the pregnant woman, additionally the Act accounts for the womans actual or reasonably foreseeable
environment. The Act also presumes that the anguish caused by a pregnancy resulting from the rape of any woman or from the failure
of any contraceptive method used either by a married woman or her husband for the purpose of limiting the number of children
constitutes grave injury to the mental health of the woman. A pregnancy may be terminated on these grounds within the first 12 weeks
of pregnancy on the opinion of one registered medical practitioner. If the pregnancy has lasted more than 12 weeks, but fewer than 20
weeks, two registered medical practitioners must be of the opinion formed in good faith that the required grounds exist.
46
Medical Termination of Pregnancy Act, 1971, s. 4 and Medical Termination of Pregnancy Rules, 2003, Rule 8.
47
Medical Termination of Pregnancy Regulations, 2003, Regulation 4(5).
48
Medical Termination of Pregnancy Regulations, 2003, Regulation 5.
11 | P a g e
woman undergoing an abortion.49 Hospitals are prohibited from disclosing the

information contained to anyone.
Storage of register: The admission register is considered secret and stored in
safe custody of the head of the hospital.50
Missing Principles
Purpose Limitation
Notice
Accountability
Openness
Oversight
POLICY AND REGULATIONS

Ethical Guidelines for Biomedical Research on Human Subjects
In 2006, Indian Council of Medical Research published the Ethical Guidelines for
Biomedical Research on Human Subjects.51 The Guidelines outline general principles
that should be followed when conducting research on human participants. Principles that
protect patient privacy include: principle of informed consent, principle of privacy and
confidentiality, principle of accountability and transparency and principle of compliance.
Choice & Consent
Principle of informed Consent: For all biomedical research involving human
participants, investigators must obtain informed consent in a document known as
the Informed Consent Form with Participant/ Patient Information Sheet.
Investigators must provide adequate information about the research in a simple
and easily understandable form. Privacy related information included in the
participant/ patient information sheet includes: the choice to prevent the use of
their biological sample, the extent to which confidentiality of records could be
maintained and the consequences of breach of confidentiality, possible current
and future uses of the biological material and of the data to be generated from the
research and if the material is likely to be used for secondary purposes or would
be shared with others, the risk of discovery of biologically sensitive information
and publications, including photographs and pedigree charts. 52
49
Medical Termination of Pregnancy Regulations, 2003, Regulation 4(2).

Medical Termination of Pregnancy Regulations, 2003, Regulations 4(2) and 4(4).
51
Ethical Guidelines for Biomedical Research on Human Subjects. (2006) Indian Council of Medical Research New Delhi.
52
Informed Consent Process, Ethical Guidelines for Biomedical Research on Human Subjects (2006). Indian Council of Medical
Research New Delhi.P. 21.
50
12 | P a g e
Research records: Researchers must maintain full and complete records of the
research inclusive of data and notes. Records should be retained for a reasonable
period necessary for post-research monitoring, evaluation of the research,
conducting further research (whether by the initial researcher or otherwise).53
Confidentiality of Identity: The protection of privacy and maintenance of
confidentiality, specifically surrounding the identity and records, is explicitly
mandated when researching participants.54 The Guidelines delineate extra care to
be taken to protect the privacy and confidentiality of the participants and
communities in surveillance studies, disaster management studies,
epidemiological studies and pedigree studies.
Collection for Surveillance Studies: Surveillance studies require ongoing,
systematic collection, analysis, interpretation, and dissemination of data regarding
a health-related event or to measure the burden of a disease. 55 However, obtaining
true disease burden rates requires the identification of populations at high risk and
data dissemination. Investigators are required to take extra care in maintaining
confidentiality, to prevent stigmatization.
Collection for Disaster Management Studies: Special care is required during
emergency or disaster situations as it is harder to ensure patient privacy and
maintenance of confidentiality. Disasters create vulnerable persons and groups in
society, particularly so in disadvantaged communities. An abundance of data
concerning those affected is created in disaster situations.
Collection for Epidemiological Studies: The Guidelines require investigators to
maintain confidentiality of epidemiological data due to the particular concern that
some population based data may also have implications to issues like national
security or public safety. 56 Investigators are also required to explain to
participants if there is a risk of loss of privacy.
Collection for Pedigree Studies: The Guidelines require special concern for
privacy and confidentiality when conducting genetic family studies. 57 Because of
the relationship between the participants, it emphasizes the right that within
families each person is an individual, who has the right to keep the information
about himself or herself confidential and that family members are not entitled to
know each others diagnosis. Investigators must establish secure safeguards to
maintain confidentiality. Investigators are required to codify biological samples,
delink genetic data, inform individuals of the limits of the investigators ability to
safeguard confidentiality and of the anticipated consequences of breach of
confidentiality.
Collection for Cultural Sensitivity in Pedigree Studies: The Guidelines are
sensitive to the cultural background of India, in that, it recognizes the
vulnerability of a woman as an exploited participant. It requires investigators to
53
Statement of General Principles, Principle VII, Ethical Guidelines for Biomedical Research on Human Subjects (2006). Indian
Council of Medical Research New Delhi.P. 6.
54
General Ethical Issues. Ethical Guidelines for Biomedical Research on Human Subjects (2006). Indian Council of Medical Research
New Delhi.P. 29.
55
Updated Guidelines for Evaluating Public Health Surveillance Systems. (2001) Centre for Disease Control. 50(RR13);1-35.
56
Statement of Specific Principles for Epidemiological Studies, Ethical Guidelines for Biomedical Research on Human Subjects
(2000). Indian Council of Medical Research New Delhi P. 56.
57
Statement of Specific Principles for Human Genetics Research, Ethical Guidelines for Biomedical Research on Human Subjects
(2000). Indian Council of Medical Research New Delhi.P. 62.
13 | P a g e
exercise extra caution when conducting genetic counselling, so as to refrain from

revealing information that may lead to or provide grounds for a divorce or break
up a family. For example, revealing the fact that the wife is the carrier of balanced
chromosomal translocation (leading to recurrent abortions or a genetic syndrome
in her child) or that she is a carrier of a single gene causing X linked or
recessive disease may lead to grounds for a divorce despite the fact that the
husband himself is a carrier of the autosomal recessive disorder. 58
Collection for DNA banking or Cell-line Banking: DNA banking or cell-line
banking59 involves a biobank or repository of resources that can be accessed to
retrieve human biological material and data, it consists of three components: (i)
the collectors of tissue samples; (ii) the repository storage and data management
center; and (iii) the recipient investigators. Specimens can be identified or
unidentified. Research samples can be linked, unidentified, coded and identified.
The sample collector must obtain informed consent of the donor, this includes:
clearly stating the risks and benefits, the conditions under which samples from the
Repository shall be provided to other researchers, how long the samples shall be
preserved in the Repository and what will be the costs to individual researchers in
obtaining samples from the Repository. Every donor reserves the right to order
destruction of his sample from the Repository at any time.
Records Keeping of Institutional Ethics Committee (IEC): All documentation and
communication of the Institutional Ethics Committee (IEC) must be dated, filed
and preserved according to the written procedures. 60 Strict confidentiality is to be
maintained during access and retrieval procedures. All records are to be safely
maintained after the completion and termination of the study for at least a period
of 3 years.
Disclosure
Disclosure of participant information: Investigators require written consent by the
participant or someone authorized on their behalf, to disclose data of individual
participants. However, researchers must ensure that the disclosure of the identity
and records of the human participant does not cause hardship, discrimination or
stigmatization as a consequence of having participated in the research or
experiment.61
Disclosure of identity: Disclosure of a participants identity or records, without
written consent, is permitted for scientific and legal reason, which may be
essential for therapeutic purposes or other interventions. Data of individual
participants can be disclosed under the following circumstances: in a court of law
under the orders of the presiding judge, if there is a threat to a persons life,
communication to the drug registration authority regarding cases of severe
adverse reaction and communication to the health authority if there is risk to
58
59
60
Record Keeping, Ethical Guidelines for Biomedical Research on Human Subjects (2000). Indian Council of Medical Research, New
Delhi.P. 19.
61
Statement of General Principles, Principle IV, Ethical Guidelines for Biomedical Research on Human Subjects (2006). Indian
Council of Medical Research New Delhi.P. 5.
14 | P a g e
public health.62
Disclosure for scrutinization: Records should be available for scrutiny by the
appropriate legal and administrative authority, if necessary.
Anonymization: If the information is required to be placed in public domain it is
recommended that anonymization be used, especially if applicable during disaster
events, mental health and evaluation of health programs.
Security
Security of records from studies: All records must be safely maintained after the
completion/ termination of any medical study for a period of at least three years if
it is not possible to maintain the same for more than that due to resource crunch
and lack of infrastructure.
Missing Principles

Purpose Limitation
Notice
Accountability
Openness
Penalty/Offecses/Liability/Remedy
Oversight
National Policy for Persons with Disabilities, 200663

Although the policies of the government of India towards disabled persons has been
reflected in a number of enactments such as the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995 and the Persons
with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules,
1996 a need was felt for a comprehensive document in this regard and it was this need
that gave birth to the National Policy for Persons with Disabilities, 2006. This policy
relies on the framework and institutions set up under the legislations mentioned above for
the implementation of its principles.
Medical Certificates: The application for obtaining a disability certificate requires
the person with disabilities to provide sensitive and personal information,
including address, proof of residence (ration card, voter id card, driving license,
bank passbook, PAN card, passport, passport photos etc.), educational status,
occupation, diagnosis and nature of their disability.
62
Statement of General Principles, Principle IV and Essential Information on Confidentiality for Prospective Research Participants,
Ethical Guidelines for Biomedical Research on Human Subjects (2006). Indian Council of Medical Research New Delhi.P. 29.
63
The National Policy for Persons with Disabilities, 2006, Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996
15 | P a g e
Purposes for Collection: The National Policy for Persons with Disabilities
requires regular collection, compilation and analysis of data relating to socioeconomic conditions of persons with disabilities. For this purpose, the National
Sample Survey Organization has been collecting information on socio-economic
conditions of persons with disabilities on a regular basis once in ten years since
1981 and on persons with disabilities from the Census of 2001.64 The National
Sample Survey Organization collects the following information on persons with
disabilities: the socioeconomic and cultural context, cause of disabilities, early
childhood education methodologies and all matters connected with disabilities, at
least once in five years. 65 Data is collected by non-medical investigators.66
Collection for Employment: The Persons with Disabilities (Equal Opportunities,

Protection of Rights and Full Participation) Act, 199567 mandates the reservation
of job posts for persons with disabilities, thereby promoting equality and
participation. The Special Employment Exchange, as established under the Act,
collects and furnishes information in registers, regarding such jobs.68 It permits
any person who is authorized by the Special Employment Exchange as well as
persons authorized by general or special order by the Government, to access,
inspect, question and copy any relevant record, document or information in the
possession of any establishment.69
Unlike the Mental Health Act, 1987 there is no mention of disclosure or
protection of information.
Choice and Consent

Consent for Research: When conducting research on persons with disabilities
consent is required from the individual or their family members or caregivers.70
The policy falls short in protecting the privacy rights and welfare of disabled persons.
Informed consent including the method of consent, whether verbal or written, should be
specified. Consent should only be accepted from the individual or their legally authorized
representative/guardian. Retention, access and storage standards of records should be
prescribed inclusive of provisions for employers, researchers and those inspecting the
records to ensure the confidentiality and the security of records pertaining to persons with
disabilities.
Missing Principles
Accountability
Openness
64
Collection of regular information on Persons with Disabilities, National Policy for Persons with Disabilities, 1993.
Research, National Policy for Persons with Disabilities, 1993.
66
Survey of Disabled Persons in India. (December 2003) National Sample Survey Organization. Ministry of Statistics and Programme
Implementation. Government of India.
67
Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
68
Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, Section 2(x).
69
Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act. 1995, Section 35.
70
Research. National Policy for Persons with Disabilities, 2003.
65
16 | P a g e
Security
Disclosure
Purpose Limitation
Notice
Oversight
Insurance Regulatory and Development Authority (Third Party Administrators)

Health Services Regulations, 2001
The Insurance Regulatory Development Authority (Third Party Administrators - Health
Services) Regulations71 issued in 2001, place regulatory guidelines on third party
administrators (TPAs). A TPA may be defined as an insurance intermediary licensed
by the Authority who, either directly or indirectly, solicits or effects coverage of,
underwrite, collect, charge premium from an insured, or adjust or settle claims in
connection with health insurance, except as an agent or broker or an insurer. 72 TPAs
have to observe a code of conduct so as to obtain a license from the Insurance Regulatory
Development Authority (IRDA). The salient features of the code of conduct in relation to
health information privacy requires:
Disclosure
Trading: TPAs are required to refrain from trading information and the records of
its business.
Disclosure for legal purposes: An exception to the maintenance and
confidentiality of information confidentiality clause in the code of conduct,
requires TPAs to provide relevant information to any Court of Law/Tribunal, the
Government, or the Authority in the case of any investigation carried out or
proposed to be carried out by the Authority against the insurance company, TPA
or any other person or for any other reason.73
Sharing of databases: In July 2010, the IRDA notified the insurance Regulatory
and Development Authority (Sharing Of Database For Distribution Of Insurance
Products) Regulations74. These regulate the conditions under which insurance
companies can purchase customer databases from referral companies. The
regulations restrict referral companies from providing details of their customers
without their prior consent, are forbidden from providing details of any
person/firm/company with whom they have not had any recorded business
transaction if they are bound by any confidentiality agreement in the matter of
sharing the personal and financial databases of its customers. The IDRA
(Insurance Advertisements and Disclosure) Regulations, 2000,75 requires insurer
or intermediary's to include disclosure statements on their web site or portal
71
The IRDA (Third Party Administrators - Health Services) Regulations 2001, (2001), http://www.irdaindia.org/tpareg.htm (last
visited Oct 15, 2011).
72
The IRDA. Role of Third Party Administrators: An Approach Paper. (2001). http://www.irdaindia.org/HTPA.htm
73
The IRDA (Third Party Administrators - Health Services) Regulations 2001, (2001), Chapter 5. Section 2.
74
The IRDA (Sharing Of Database For Distribution Of Insurance Products) Regulations 2010.
75
The IRDA (Insurance Advertisements and Disclosure) Regulations 2001.
17 | P a g e
outlining specific policies vis--vis the privacy of personal information.

Security
Confidentiality: TPAs must maintain the confidentiality of the data collected by it
in the course of its agreement and maintain proper records of all transactions
carried out by it on behalf of an insurance company.
Data Retention: TPAs must keep records for a period of not less than three
years.76
Missing Principles
Accountability
Openness
Purpose Limitation
Choice and Consent
Notice
Oversight
IDRA Guidelines on Outsourcing of Activities by Insurance Companies77
In February 2011, the IRDA issued guidelines permitting insurance companies to
outsource their non-core functions which include claim processing for over overseas
medical insurance, call centre, tele-marketing, data entry, printing and posting of
reminders and other documents and pre employment medical checkups among others.
Security
Confidentiality: The guidelines require the insurer to take appropriate steps that
require third party service providers protect confidential information of both the
Insurer and its clients from intentional or inadvertent disclosure to unauthorized
persons.78
Standardized storage: In addition, if insurers issue policies and data storage in
electronic form, it is mandatory for them to do so with the repository service
providers authorised by IRDA. 79
Oversight
Redressal Mechanism: The guidelines require every Insurer to direct in house
Grievance Redressal Machinery to deal with grievances relating to services
provided by the outsourced agencies. 80
76
As of this writing there are 29 licensed TPAs in India. See List of TPAs Updated as on 19th December, 2011, Insurance Regulatory
and Development Authority (2011), http://www.irda.gov.in/ADMINCMS/cms/NormalData_Layout.aspx?page=PageNo646 (last
visited Dec 19, 2011).
77
The IRDA, Guideline on Outsourcing of Activities by Insurance Companies, (2011).
78
The IRDA, Guideline on Outsourcing of Activities by Insurance Companies, (2011), Section 9.11. P. 8.
79
The IRDA, Guideline on Outsourcing of Activities by Insurance Companies, (2011), P. 10.
80
The IRDA, Guideline on Outsourcing of Activities by Insurance Companies, (2011), P. 10.
18 | P a g e
Missing Principles
Accountability
Openness
Disclosure
Purpose Limitation
Choice and Consent
Notice
IRDA Health Insurance Portability Guidelines81

In February 2011, the IRDA released the Health Insurance Portability Guidelines to
enable and ensure that historical data on the policyholders health related details of
claims be available to insurers. This will ensure that portability is available in a smooth
manner for the policyholders.
Databasing: IRDA has provided a web based facility for the insurers to feed in all
relevant details on health insurance policies issued by them to individuals which
will be accessed by the new company to which a policyholder wishes to port his
policy.82
Missing Principles
81
82
Accountability
Openness
Security
Disclosure
Purpose Limitation
Choice and Consent
Notice
Oversight
The IRDA, Health Insurance Portability Guidelines. (2011).

The IRDA, Press Release: Health Insurance Portability. (July 24, 2011).
19 | P a g e
PROJECTS AND PRACTICES

Investigative Techniques and Privacy
In India, investigative techniques such as brain mapping, narco analysis and polygraph
tests have been administered under provisions of the Code of Criminal Procedure, 1973
and the Indian Evidence Act, 1872.83 Specifically, narco analysis has been used in the
investigation of a large number of high profile cases, including that of the Godhra train
burning,84 the Abdul Karim Telgi fake stamp paper scam,85 the Nithari serial killings,86
the Arun Bhatt kidnapping,87 the beer killer,88 the Arushi-Hemraj double murder case89
and the Mumbai blasts.
Narco analysis, popularly known as Truth Serum Test, is psychotherapy conducted
while the patient is in sleep-like state induced by barbiturates or any other drug,
especially as a means of releasing repressed feelings, thoughts, or memories.90 A team
comprising of an anaesthesiologist, a psychiatrist, a clinical or forensic psychologist, an
audio-videographer, and supporting nursing staff conduct this test.91 The decision to
conduct narco analysis is usually made by the Superintendent of Police or the Deputy
Inspector-General handling a case.92
Over the past decade, the constitutionality, reliability, ethics and validity of narco
analysis has steadily been challenged in the Indian Courts. In 2004, the Bombay High
Court ruled in the multi-crore fake stamp paper case that statements made under narco
analysis are not admissible in evidence however; recoveries resulting from such drugged
interviews are admissible as corroborative evidence.93 Again in 2004, Ramchandra Reddy
and Ors. v. State of Maharashtra, upheld the legality of the use of P300 or brain fingerprinting, lie-detector test and the use of truth serum or narco analysis, the admissibility of
evidence procured under the effect of truth serum and that these tests involve minimal
bodily harm.94 In a 2006 judgment, Dinesh Dalmia v. State, the Madras High Court held
Section 45 of the Indian Evidence Act, 1872 When the court has to form an opinion upon a point of foreign law, or of science, or
art, or as to identity of handwriting or finger impression, the opinions upon that point or persons especially skilled in such foreign law,
or of science, or art, or as to identity of handwriting or finger impressions are relevant.
84
In 2002, narco analysis was first used in to extract the truth from seven persons accused of setting a train coach on fire and
subsequently killing 58 Hindus including 25 women and 15 children.
85
The most infamous use of narco analysis was in connection with Abdul Karim Telgi and the multi crore fake stamp paper case. 85 In
2004, the Bombay High Court ruled that in the Telgi case subjecting an accused to certain tests like narco analysis does not violate the
fundamental right against self-incrimination.
86
In 2006, narco analysis was used on the two men accused of the Nithari serial killings of women and children in Nithari village, in
Noida, Uttar Pradesh.
87
In December 2003, the prime accused in the Arun Bhatt kidnapping case, Jeetu Patel moved the National Human Rights
Commission and the Supreme Court against a Gujarat High Court directive to conduct a narco analysis on him. Patel objected on the
grounds that he was a cardiac patient and was not in agreement to conducting the narco analysis on him and therefore it violates
Article 20(3) of the Constitution.
88
In 2007, Ravindra Kantrulu, nicknamed beer killer, admitted to killing 15 people during a narco-analysis. He had earned the
nickname Beer man for leaving an empty beer can beside all his roadside victims, whom he killed by clubbing and stabbing.
89
In 2008, the Central Bureau of Investigation extensively used narco analysis in the double murder case of Aarushi Talwar and
Hemraj. The Supreme Court rejected a public interest litigation (PIL) case, which challenged the administration of narco analysis test
on the accused in the case.
90
http://jurisonline.in/2010/08/narcoanalaysis-r-h/
91
http://jurisonline.in/2010/08/narcoanalaysis-r-h/
92
http://jurisonline.in/2009/03/constitutionality-of-narco-analysis/
93
http://www.hindu.com/fline/fl2409/stories/20070518002109700.htm
94
http://www.hindu.com/fline/fl2409/stories/20070518002109700.htm
83
20 | P a g e
that subjecting an accused to narco analysis is not tantamount to testimony by

compulsion. In 2007, a court in Kerala pronounced that no court order is required to do a
narco analysis, disposing of a petition filed by the CBI seeking permission of the court.
The magistrate said that filing this type of a plea would only delay the investigation.95
The court said nobody could stand in the way of the investigating agency conducting tests
recognized as effective investigation tools.96
In 2010, Smt. Selvi Ors. v. State of Karnataka, the Supreme Court of India disagreed with
various High Court judgments in three main areas: a) the reliability/unreliability of the
tests; b) self-incrimination protections; and c) substantive due process rights. The
Supreme Court held that involuntary subjection of a person to narco analysis, polygraph
test and brain-mapping violates the right against self-incrimination' which finds its place
in Article 20(3)97 of the Constitution.98 Additionally, even when a person volunteers to be
subject to these tests, their result cannot be admitted as evidence in a court of law.
However, the Court did say that any information or material that is subsequently
discovered with the help of voluntarily administered test results can be admitted.99
Lastly, the court found that narco analysis violated individuals right to privacy by
intruding into a subjects mental privacy, denying an opportunity to choose whether to
speak or remain silent, and physically restraining a subject to the location of the tests and
amounted to cruel, inhuman or degrading treatment.100
Business Process Outsourcing

As leading markets such as the United States, Canada and Europe have growing
healthcare information management sector, India has become a destination of choice for
outsourcing in health information management. Outsourcing services such as medical
transcription, coding and billing, pharmacy benefits management, electronic medical
records solution, medical research, etc., exposes data holders to the threat of data theft,
breach, and additional and unconsented use. Medical data is an important asset to the data
holders who have collected and compiled the information as incentives to unauthorized
data distribution arise from an increasingly thriving data industry where rms such as
biotech companies collect, compile, share or sell (bio) medical data for prots.101 The
proliferation of the (United States) Health Insurance Portability and Accountability Act
(HIPPA) compliance training demonstrates the growing trend of Indian companies
complying with (HIPPA) standards and the increased concern around transferring
medical data to India.
Medical Termination of Pregnancy and Quality of Care
95
http://www.issuesinmedicalethics.org/151co09.html
http://www.issuesinmedicalethics.org/151co09.html
97
'No person accused of any offence shall be compelled to be a witness against himself, (the 'right to silence').
98
http://indiankanoon.org/doc/338008/
99
Please see the discussion on case law in the National Security chapter
100
http://www.hrdc.net/sahrdc/hrfeatures/HRF205.pdf
101
Elisa Bertino and Yanjiang Yang, Privacy and ownership preserving of outsourced medical data, IN ICDE (2005): 521--532.
96
21 | P a g e
Implementation of the Medical Termination of Pregnancy Act, 1971 has been slow and
geographically uneven; abortion services are often inaccessible and women are reluctant
to utilize those services because of the lack of anonymity and confidentiality. 102 Privacy
and anonymity on which the practice of abortion fundamentally depends on is nonexistent. Patients need anonymity and privacy to be safe from community stigma or
retaliation and free from the unwanted influence of friends, family members, and
acquaintances.103 In a study in Pune, India, women seeking an abortion outside of
marriage ranked confidentiality, discreetness and distant location of abortion services as
the most important indicators of quality of services.104 Studies show that providers often
disregard the need to respect the privacy and confidentiality of women seeking abortion:
privacy and confidentiality is not an issue with women. After all where can you get
more anonymity than at a public hospital where thousands are milling around in the outpatient department?.105
Save The Baby Girl Project
Launched on March 8, 2009, the Save The Baby Girl (STBG) Project was created to
implement the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994 (PCPNDT Act), with the objective of curbing female foeticide and
enhancing sex ratio.106 The STBG system is implemented in two phases, an online portal
called www.savethebabygirl.com107 and fitting a video capture device called Silent
Observer (SIOB) to the ultra sound machine.
The SIOB now called the active tracker (an improved version of SIOB) monitors
ultrasound tests and records sonography images of each sonography conducted and stores
it in the local hard drive of the SIOB.108 The sonography video is accessible to doctors
and a few government and company officials," said Girish Lad, CEO of Magnum Opus,
the company which has pioneered the technology. 109 The SIOB is sealed in presence of
the concerned doctor/radiologist with his signature and the appropriate authority,
whenever it deems fit, may request the concerned doctor/radiologist and his authorized
person go to the centre and access the selected data on pen drive, it is then viewed by a
member of Radiologist Association after which they offer their observation.110
The online portal was created for filling the F form, which is mandatory and contains
102
Abortion Policy: India. Population Policy Data Bank maintained by the Population Division of the Department of Economic and
Social Affairs of the United Nations Secretariat. Retrieved From www.un.org/esa/population/publications/abortion/doc/india.doc
103 Clapman, A. (2003). Privacy Rights and Abortion Outing: A Proposal for Using Common-Law Torts to Protect Abortion Patients
and Staff. The Yale Law Journal, 112(6), 1545-1576. doi:10.2307/3657452.
104
Santhya, K.G. and Verma, S. (2004) Induced Abortion: The Current Scenario in India. Regional Health Forum. Volume 8, Number
2. Pg. 9.
105
Santhya, K.G. and Verma, S. (2004) Induced Abortion: The Current Scenario in India. Regional Health Forum. Volume 8, Number
2. Pg. 8.
106
One World Foundation India, Save the Baby Girl - Mitigating Female Foeticide through ICT, March 2011,
http://indiagovernance.gov.in/bestpractices.php?id=746.
107
www.savethebabygirl.com
108
http://www.dnaindia.com/mumbai/report_exclusive-maharashtra-government-s-silent-observer-can-do-little-to-save-girlchild_1588899
109
http://articles.timesofindia.indiatimes.com/2011-01-30/mumbai/28370095_1_sonography-machines-kolhapur-model
110
Radiological & Imaging ... vs Union of India on 26 August, 2011. (n.d.). Retrieved November 15, 2011, from
22 | P a g e
the case history and details of pregnant women.111 The appropriate authorities get the
reports of the each USG immediately through an online system which they can cross
check and monitor and track easily and from anywhere with the use of PC with internet
connection.112 The portal is developed in such a way that it automatically creates various
reports such as pregnant females with two or more previous girl child, etc. So suspected
cases can be identified and tracked on a single click. Users are created as per the
authority levels such as district user with access of all district level data, tehsil level
users, rural and urban level users, etc.113 So each appropriate authority as per the region
can access and monitor the USGs performed in their respected areas.
A high level committee, headed by Dr. PP Doke, Director of Health Services reported
that in Kolhapur, the SIOB has failed to have any significant impact on the districts sex
ratio and labelled it useless as it can be easily detached from a sonography machine. 114
Dr. Jignesh Thakker, Maharashtra head of Radiological and Imaging Association, said
they had pointed out the flaws of SIOB right at the beginning. Sex determination tests
can be done easily even with SIOB attached to machines, one just needs to remove a thin
tape seal and carry on. There will be no record, Thakker said.
The Secretary General of IRIA, Dr. Jignesh Thakker has stated that, "the privacy of the
individual was most important, and we feel that the SIOB breaches it, as male patients
and non-pregnant patients do not fall under the purview of the PCPNDT Act, and hence,
their images at least should not be recorded. By doing so, the doctors who are using this
program may be at risk of being sued by the patient whose images have been recorded, as
it goes against Clause 72 of the Information Technology Act 2000". Another radiologist
said, installing silent observers only benefit private manufacturers as it costs about Rs.
30,000. 115
Officials admit that the PNDT Act is difficult to implement because sex selection
happens within the confines of doctor-patient confidentiality.116 Aside from the civilsociety-inspired way of ensuring implementation of the PNDT Act through sting/decoy
operations, almost the entire success of the implementation of the PMDT Act depends
on the maintenance of the records and the monitoring of the same sometimes through
sudden inspections.117 Demonstrating the difficulty of enforcement, a United States
patent introduced a back-door sex determination kit called Baby Gender Mentor Home
DNA Gender Testing Kit. The kit, priced at $275 was popularly known as Jantar
Mantar in rural Punjab. It had a built-in-equipment for collecting and sending a fingerprick blood sample to a Massachusetts laboratory from where confidential results were
111
One World Foundation India. (2011, March). Save the Baby Girl - Mitigating Female Feticide Through ICT. Retrieved December
6, 2011, from http://indiagovernance.gov.in/bestpractices.php?id=746
112
http://savethebabygirl.in/readmore.aspx
113
http://savethebabygirl.in/readmore.aspx
114
115
116
National Population Stabilization Fund. (2007).Jansankhya Sthirata Kosh. Retrieved December 5, 2011, from
http://jsk.gov.in/sexratio_and_population.asp
117
Josantony Joseph and Centre for Youth Development and Activities commissioned by UNFPA (2006). Reflections on the
Campaign against Sex Selection and Exploring Ways Forward. Retrieved from http://india.unfpa.org/drive/Reflections.pdf
23 | P a g e
sent via e-mail within 48 hours. Legislation surrounding such other methods of sex
determination does not exist.
UID Project and Health
UID is becoming ubiquitous and is a prerequisite identifier for access to a wide variety of
welfare schemes and services such as public health. The Unique Identification Authority
of India (UIDAI) identified health and health related development schemes as a killer
application for UID in the form of a unique health identification number. It is envisioned
that health related transactions and the associated identifying information will be
aggregated by a wide variety of health care providers, including family physicians,
consultants, pathology laboratories, radiology clinics, hospitals, primary health centres
etc.
In August 2009, Apollo Hospitals had written to the UIDAI and to the Knowledge
Commission to link the UID number with health records of those provided with the ID
number, and offered to manage the health records. The Apollo Hospital group has already
created HealthHiway a cloud-based health information network that allows hospitals,
doctors, clinics, and insurance providers to access and share personal health records of
patients.118 However, it is unclear whether or not the HealthHiway will be used within the
UID system.
The Ministry of Health and Family Welfare, alongside the National
Knowledge Commission, Centre For Development Of Advanced Computing have
constituted an EHR Standards committee. The sub-committee on inter-operability of
health data recommended the UID number as the most feasible method of digitizing
health records for the entire country.119 Recommending that everyone associated in the
treatment process should be identified not by name but by the UID number to ensure
accuracy and transferability of the data.
Mohan Rao, a professor at the Centre of Social Medicine and Community Health (JNU,
New Delhi) had this to say in a critique: Given that many diseases continue to bear a
stigma in this country, the UID scheme has the unique potential of increasing stigma by
breaching the anonymity of health data collected.120It thus violates the heart of the
medical encounter, namely confidentiality.121 By making this information potentially
available to employers and insurance companies, the scheme bodes further gross
violations of health rights.122
Sangita Reddy, executive director (operations) at Apollo Hospitals, cites the hypothetical
case of a car accident victim being rushed to a hospital emergency room.
You could physically identify who that person is but you wouldnt know his blood
118
http://www.business-standard.com/india/news/apollo-begins-project-to-connect-health-players/21/15/368246/
http://www.indianexpress.com/news/ministry-panel-for-uid-as-basis-for-digitised-health-records/880760/0
120
http://www.frontlineonnet.com/stories/20111202282401900.htm
121
122
119
24 | P a g e
group, his allergies or anything about his health, Reddy says. Whereas, if his UID
number was linked to a UHID (unique healthcare identification number), and there was
something called emergency access, you could go into that and identify his complete
record. So, there are all kinds of instances as to how we could use this to help save lives
and improve quality of care and reduce cost.123
However it must be pointed out that error rates for biometric technology are high.
Considering the fact that people can be wrongly identified (false-positives), not detected
at all (false-negative) or other system errors relying on biometrics and the UHID is not
infallible, especially when people are in an unconscious state. Relying on biometric
technology could potentially cause more harm if someone is falsely identified, as the
health-care providers could be misinformed.
Dr. Kamlesh Bajaj, points out that since the UID database has to be accessible over
networks in real time, if networks fail or become unavailable, the entire identification
system may collapse, this can have fatal effects in the healthcare industry.
The UID system is prone to function creep, whereby information can be used for a
secondary purpose that goes beyond the primary purpose of collection. In addition, using
the UID, intelligence agencies can profile individuals by analyzing patterns of behaviours
across various datasets (health records, bank records, air travel records etc.). Significant
security risks include insider abuse, spoofing, tampering, hacking, possibility of easy
manipulation without detection and access control.
HIV Interventions
In 1992, the Government of India formulated the National AIDS Control Organisation
(NACO) for the prevention and control of AIDS. NACO considers
the most effective means of controlling the spread of HIV in India is through the
implementation of Targeted Interventions (TIs) for most at risk populations (MARPs)
namely, sex workers, men having sex with men and people who inject drugs.
TIs are implemented at the community-level through a peer-group approach. Peer
educators and outreach workers promote and link MARPs to HIV related services like
testing, counselling etc., in a buddy support fashion.
This target-based system of testing has raised many concerns surrounding violations of
confidentiality and privacy of persons living with HIV/ AIDS. In an interview with Subha
Chacko, she outlined the various loopholes in the current system that results in an
invasion of privacy.
Collection of Personal Information: Project staff in TIs are mandated to record the name,
address and other contact information of MARPs and share this data with
Technical Support Unit and State AIDS Control Societies.124 Proof of address and
123
124
http://www.livemint.com/2009/12/29203506/Healthcare-sites-may-see-a-fun.html
http://www.lawyerscollective.org/files/Anti%20rights%20practices%20in%20Targetted%20Interventions.pdf
25 | P a g e
identity documents were required to get enrolled in government ART programmes.125

Line-listing: Peer-educators operate under a system known as line-listing, used to make
referrals and conduct follow-ups. Peer-educators have to follow-up with those who have
not gone at regular intervals for testing.126 This practice can result in peer-educators
noticing and concluding that the names missing are those who have tested positive. 127
Involuntary nature: While the policy states that testing has to be voluntary, in practice the
model places at its centre the fulfilling of numerical targets, and thereby inherently
supports unethical ways of testing.128
Undue pressure: Fear of a cut in salary, loss of work and a negative performance
assessment has reportedly resulted in peer staff pressurizing their contacts to get tested.129
In addition, they are under pressure to meet unrealistic targets vis--vis testing.130 Peereducators get MARPs to use different names and addresses to access testing and
treatment centres, so as to ensure their quota is met.
The right to privacy is considerably essential for persons living with HIV/AIDS due to
the potential stigmatizing and discriminatory impact.131 Consequently, lack of privacy
rights fuels the spread and exacerbates the impact of the disease. Fears emanating from a
privacy breach or of disclosure that deter people from getting tested, seeking medical care
and treatment include: low self esteem, fear of loss of support from family/peers, loss of
earnings especially for female and transgender sex workers, fear of incrimination for
illicit sex/drug use, inflexibility of ICTC timings and insensitivity of counsellors.132
People living with HIV fear their positive status being leaked if they visit the ART centre
or when they are on treatment (i.e. people see them taking their medicines and thereby
guess their status) also prevents people from seeking out treatment.133
Mother and Child Tracking System
The Ministry of Health and Family Welfare has registered more than 10 million pregnant
women in an e-governance initiative known as The Mother and Child Tracking System
(MCTS).134 MCTS is a name-base tracking system that generates date-wise details to
keep track of pregnant women and children. Pregnant women are tracked from
Aneka, Karnataka Sexual Minorities Forum. (2011)Chasing Numbers, Betraying People: Relooking at HIV Services in
Karnataka. P 22.
126
Karnataka. P 16.
127
Karnataka. P 16.
128
Karnataka. P 14.
129
http://www.lawyerscollective.org/files/Anti%20rights%20practices%20in%20Targetted%20Interventions.pdf
130 Aneka, Karnataka Sexual Minorities Forum. (2011)Chasing Numbers, Betraying People: Relooking at HIV Services in
125
Karnataka. P 14.
131
http://www.hivaidsonline.in/index.php/HIV-Human-Rights/legal-issues-that-arise-in-the-hiv-context.html
132 Chakrapani et al, (2008) HIV Testing Barriers and Facilitators among Populations at-risk in Chennai, India, INP, p 12.
133
Karnataka. P 24.
134
http://www.medindia.net/news/Mother-and-Child-Tracking SystemMCTSRegisters-One-Crore-Pregnant-Women-926841.htm#ixzz1cd01jfBT
26 | P a g e
registration to Ante-Natal Care Check-ups (ANCs) to delivery till post-natal care (PNCs)
for complete service delivery, timely identification of risk, irrespective of place of
registration. Whereas, tracking of children takes place from birth to the end of
immunization, irrespective of place of registration. MCTS has a feedback system that
conveys date-wise details to auxiliary midwife nurses (ANM) or accredited social health
activist (ASHA) workers to ensure that all pregnant women receive their ANCs and
PNCs; and further children receive their full immunization. Additionally, every expectant
mother receives cell phone messages with regard to their next immunization and check
up dates.135
Information required to track pregnant women include identification details (name,
husbands name, phone number, date of birth, JSY beneficiary, caste), location details,
health provider details, ANC details, pregnancy outcome (place of delivery,
complications, abortion), PNC details, infant details, and immunization details.
Information is collected and accessed in the following manner:
1. Data is collected under the National Rural Health Mission and is fed on the MCTS
software.
2. The software is installed in the taluk hospitals across the state.
3. The taluk hospitals get the data from primary health centres which in turn obtain
information from ANM or ASHA workers.
4. The ANM and ASHA workers issue a thayi card to pregnant women and register
them for ante-natal check-up.
5. The details are SMSed to taluk hospitals where the data operators feed the
information into the software.
6. The software generates date-wise details of deliverance of services which are
conveyed to the ANMs and ANCs and the expectant mothers.
7. Supervisory checks are carried out to ensure correctness of primary data and services
delivered.
The Health Ministry is planning to set up a central monitoring call centre to monitor
progress under the National Universal Immunization Program.
Although it is a management tool to reduce maternal mortality rates, infant mortality rates
and total mortality rates and track the health service delivery at the individual level, there
are many concerns surrounding the ethical use of information, privacy and data sharing
issues. Specific guidelines should mandate data collection, storage, and shared according
to specific guidelines The MCTS system involves data sharing with various parties and
means, however, the lack of access and security standards could potentially result in a
data breach and privacy violation. ANMs and ANCs are required to SMS the details of
pregnant women and children. This method of data sharing should detail restrictions on
disclosure and safeguarding of transferring health information.
Health Insurance Schemes
135
http://www.deccanherald.com/content/189872/mother-child-tracking-system-suffers.html
27 | P a g e
Four important initiatives by the central government (through Rashtriya Swasthya Bima
Yojana - RSBY) and state-sponsored schemes, as in Andhra Pradesh, Tamil Nadu, and
Karnataka seek to provide medical insurance to a large number of the population. Three
of the giant schemes (RSBY, Rajiv Aarogyasri and Kalaignar) in a span of three years
have covered roughly 247 million, over one-fifth of Indias population.136 This is due to
the fact that Andhra Pradesh and Tamil Nadu models provide care for high-end, lowfrequency, rare diseases, while RSBY provides largely secondary care of high-frequency
and common diseases.137
The National Health Insurance Scheme: Rashtriya Swasthya Bima Yojana (RSBY)
In 2008, the Rashtriya Swasthya Bima Yojana (RSBY) was launched by Ministry of
Labour and Employment, Government of India to provide health insurance coverage for
Below Poverty Line (BPL) families. The objective of RSBY is to provide protection to
BPL households from financial liabilities arising out of health shocks that involve
hospitalization. Beneficiaries under RSBY are entitled to hospitalization coverage up to
Rs. 30,000/- for most of the diseases that require hospitalization.138
One of the hallmarks of the scheme is its heavy reliance on smart cards to ensure delivery
of services.139 Around 25 million smart cards have been issued benefitting more than 75
million individuals from BPL families.140 Smart cards enable cashless transaction as well
as inter-operatibility in network hospitals throughout the country.141 Every beneficiary
family is issued a biometric enabled smart card containing their fingerprints and
photographs. All the hospitals empanelled under RSBY are IT enabled and are connected
to the server at the district level.142
Under the scheme, each state selects an insurance company to fulfill the mandate of the
scheme within the territory of the state.143 The insurance company in turn enters into
agreements with hospitals, which will be the sites of service delivery. 144 The state
supplies the insurance company with a full list of BPL households enumerated according
to the previous census.145 It is the insurance company which is responsible for enrolling
beneficiaries by obtaining their biometric data (fingerprints and photographs) and issuing
them a smart card.146 The list is posted in each village prior to the enrollment and the date
and location is publicized in advance.
Currently, the various insurance companies in each state have their own software and
136
Public Health Foundation of India. (Jan 2011) A Critical Assessment of the Existing Health Insurance Models in India. P. 10.
Public Health Foundation of India. (Jan 2011) A Critical Assessment of the Existing Health Insurance Models in India. P. 12.
138
About the Scheme, RASHTRIYA SWASTHYA BIMA YOJANA (2009), http://www.rsby.gov.in/about_rsby.html (last visited Oct 15,
2011).
139
Iyengar, P. (2011) Country Report: Privacy in India. P. 105.
140
http://www.business-standard.com/india/news/qa-dr-k-seeta-prabhu-undp-india-senior-advisor/454648/
141
Swarup, Anil. (2008). Country Paper: India (Rashtriya Swasthya Bima Yojana). Asia-Pacific Regional High-Level Meeting on
Socially-Inclusive Strategies to Extend Social Security Coverage.
142
How it Works, RASHTRIYA SWASTHYA BIMA YOJANA (2009), http://www.rsby.gov.in/about_rsby.html (last visited Oct 15, 2011).
143
144
145
It is unclear to what extent this transfer is legal.
146
137
28 | P a g e
databases.147 According to one account, A central server has been established wherein
participating insurers (or TPAs on behalf of insurer) push/upload data in batches.148
Original bio-metric data containing finger prints, photographs etc is submitted in CD/hard
disk separately.149 However owing to inconsistencies in storage formats between
insurers, a Central Data Management Agency is envisaged which would consolidate the
data held by the various insurers and be a comprehensive, uniform system to operate
the scheme.150 Once installed, this CDMA would have the potential to become a National
Health Record system.151
Judicial Interventions
The jurisprudence in India on medical privacy has primarily evolved, like many other
areas of privacy law, through judicial pronouncements given in specific circumstances.
Therefore, no discussion of this issue in the context of Indian law would be complete
without a discussion of some of the important judgments which not only talk about
privacy rights in the medical arena but also juxtapose this right with others, such as the
right to privacy of infected individuals vis-a-vis the right to protect non infected persons.
Neera Mathur v. Life Insurance Corporation,152 (1991)
In this case Ms. Mathur contested wrongful termination after she availed of maternity
leave. LIC required the women applicants to furnish personal details like their menstrual
cycles, conceptions, pregnancies, etc. at the time of appointment. Such a requirement was
held to go against the modesty and self respect of women. The Court held that
termination was only because of disclosures in application, which was held to be
intrusive, embarrassing and humiliating. LIC was directed to delete such questions.
We have examined the matter carefully. We have nothing on record to indicate
that the petitioner's work during the period of probation was not satisfactory.
Indeed, the reason for termination seems to be different. It was the declaration
given by her at the stage of entering the service. It is said that she gave a false
declaration regarding the last menstruation period with a view to suppress her
pregnancy. It seems to us that the petitioner cannot be blamed in this case. She
was medically examined by the Doctor who was in the panel approved by the
Corporation. She was found medically fit to join the post. The real mischief
though, unintended is about the nature of the declaration required from a lady
candidate. The particulars to be furnished under columns (iii) to (viii) in the
declaration are indeed embarrassing if not humiliating. The modesty and self
respect may perhaps preclude the disclosure of such personal problems like
whether her menstrual period is regular or painless, the number of conceptions
147

149
Malti Jaiswal, Insuring Health of Millions, 8 IRDA JOURNAL 25-28 (2010), http://www.rsby.gov.in/how_works.aspx (last visited
Dec 16, 2011).
150
Central Data Management Agency Concept Note, (2010), http://www.rsby.gov.in/Documents.aspx?ID=16 (last visited Oct 16,
2011).
151
152
AIR 1992 SC 392.
148
29 | P a g e
taken place; how many have gone full term etc. The Corporation would do well to
delete such columns in the declaration. If the purpose of the declaration is to deny
the maternity leave and benefits to a lady candidate who is pregnant at the time of
entering the service (the legality of which we express no opinion since not
challenged), the Corporation could subject her to medical examination including
the pregnancy test. In the circumstances the interim order already issued is made
absolute. We however, direct that the appellant is not entitled to the salary from
the date of discharge till her reinstatement. With this direction the appeal stands
disposed of but no order as to costs.
Although the Court did not refer to the term privacy however it used the term personal
details as well as modesty and self respect, but did not specifically link them to the right
to life or any other fundamental right. These terms (modesty and self respect) are usually
not connected to privacy but although they may be the harm which comes from an
intrusion of ones privacy.
Case Highlights
Questions related to an individuals reproductive issues are personal

details and should not be asked in the service application forms.
Ms. X vs. Mr. Z & Anr,153 (2001)

In Ms. X vs. Mr. Z & Anr,154 the Delhi High Court held that an aborted foetus was not a
part of the body of a woman and allowed the DNA test of the aborted foetus at the
instance of the husband though the application was opposed by the wife on the ground of
Right to Privacy.7 The couple were in the midst of divorce litigation and the husband
had alleged that the wife had an adulterous affair with another person due to which she
had become pregnant. In order to prove this charge the husband wanted a DNA test to be
conducted on the tissues of the foetus (which had been preserved by the hospital upon
termination of the pregnancy). This plea of the husband was opposed by the wife on the
ground that this would violate her right to privacy.
9. Bombay High Court in the case of Sadashiv Malikarjun Kheradkar v. Smt.
Nandini Sadashiv Kheradkar and Another, 1995 Crl. L.J. 4090, the Court relied
upon the decision of the Supreme Court in the case of Goutam Kundu v. State of
West Bengal, , and held that the Court has power to direct blood examination but
it should not be done as a matter of course or to have a roving inquiry. The
Bombay High Court even felt that there should be a suitable amendment by the
Legislature and after noting that nobody can be compelled to give blood sample, it
was held that the Court can give a direction but cannot compel giving of blood
sample. The findings in this regard are:
".....There was be some strong prima facie case to be established by the
husband to show non-access in order to get over the legal presumption
under Section 112 of the Evidence Act and Supreme Court has also
observed that nobody can be compelled to give blood sample. Therefore,
153
154
96 (2002) DLT 354.

96 (2002) DLT 354.
30 | P a g e
the position is that the Court has power to give a direction to a party to
give blood sample for the purpose of examination of the same but the
party cannot be compelled to give blood for testing purpose. In other
words, the Court can direct a party and if the party fails to obey the
direction, the Court cannot compel the party to give blood sample. In such
circumstances, when there is a direction and non-compliance by a party,
the only thing is that the Court may draw an adverse inference against the
party who fails to give blood samples in spite of the direction of the
Court."
11. The conclusions are obvious that nobody can be compelled without his
consent to submit to DNA test. A direction can be issued. Such direction should
not be done in the ordinary course, in routine or as a roving inquiry. A strong
prima-facie case should be made out.
12. In the facts of the present case, at this stage, the foetus is not a part of the body
of the petitioner. It had already been discharged. It is true that the carrying of the
foetus would depend upon the mother but the bond between them came to an end
when it was discharged. It cannot thereafter be treated as a part of the mother, but
was a unique organism. When the foetus has already been discharged from the
body of the petitioner there is no question of compelling her to submit to any test.
It is an organism, which has been preserved and, therefore, once the organism is
preserved, the petitioner cannot claim that it should not be put to any test. The
question of compelling her to do any particular act does not arise. This argument,
therefore, so much thought of by the learned Counsel for the petitioner, must fail.
19. From the aforesaid, the conclusion can conveniently be drawn, viz., that right
of privacy though a fundamental right, forming part of her constitutional right of
her life enshrined under Article 21 cannot be taken to be an absolute right. The
right of privacy may arise from contract and also may arise from a particular
specific relationship including matrimonial but when the right to privacy has
become a part of public document, in that event a person concerned, indeed
cannot insist that any such test would infringe his/her right of privacy.
20. The position herein can again be taken note of. As already referred to above,
the foetus is no more a part of the body of the petitioner. The petitioner indeed has
a right of privacy but is being not an absolute right, therefore, when a foetus has
been preserved in All India Institute of Medical Science, the petitioner, who has
already discharged the same cannot claim that it affects her right of privacy.
Adultery has been alleged to be one of the grounds of divorce. At this stage, the
Court is not expressing any opinion on merits of the matter, but the petitioner
indeed cannot resist the request of respondent No. 1. However, if the petitioner
was being compelled to subject herself to blood test or otherwise, she indeed
could raise a defense that she cannot be compelled to be a witness against herself
in a criminal case or compelled to give evidence against her own even in a civil
case but the position herein is different. The petitioner is not being compelled to
do any such act. Something that she herself has discharged, probably with her
31 | P a g e
consent, is claimed to be subjected to DNA test. In that view of the matter, in the
peculiar facts, it cannot be termed that the petitioner has any right of privacy.
It is very important to note here that although it was held that the Court can give a
direction to a party in a litigation to give a blood sample, it cannot compel that party to
give its blood, i.e. if the party fails to comply with the order of the Court, the Court
cannot compel the party to give a blood sample but can only draw an adverse inference
from the partys conduct.
Further, the fact that the Court is relying upon the principles laid down in the case of R.
Rajagopal seems to suggest that the Court is treating organic tissue preserved in a public
hospital in the same manner as it would treat a public document, insofar as the exception
to the right to privacy is concerned.
Case Highlights: Ms. X vs. Mr. Z & Anr
The right to privacy is not absolute and a womens right to privacy does not
extend to a foetus which is no longer a part of her body.
The right to privacy may arise from a contract as well as a specific
relationship, including a marital relationship.
The principle in this case has been laid down in broad enough terms that it
may be applied to other body parts which have been disassociated from
the body of the individual.
B.K Parthasarthi vs. Government of Andrha Pradesh,155 (1999)

In B. K. Parthasarthi vs. Government of Andhra Pradesh,156 the Andhra Pradesh High
Court had to decide the validity of a provision in the Andhra Pradesh Panchayat Raj Act,
1994 which stipulated that any person having more than two children should be
disqualified from contesting elections. This clause was challenged on a number of
grounds including the ground that it violated the right to privacy. While discussing the
right to privacy and the right to reproductive autonomy, the Court held:
14. The personal decisions of the individual about the birth and babies called 'the right
of reproductive autonomy' is a facet of a 'right of privacy.' The American Supreme Court
in Skinner v. Oklahoma, 316 US 535, characterised the right to reproduce as a "one of the
basic civil rights of man."
15. The right to make a decision about reproduction is essentially a very personal
decision either on the part of the man or woman. Necessarily, such a right includes the
right not to reproduce. The intrusion of the State into such a decision making process of
the individual is scrutinised by the constitutional Courts both in this country and in
America with great care.
155
156
AIR 2000 A.P 156.

AIR 2000 A.P 156.
32 | P a g e
22. The impugned provision, viz., subsection (3) of Section 19 of the said Act does not
directly curtail or directly interfere with the right of any citizen to take a decision in the
matter of procreation. It only creates a legal disability on the part of any person who has
procreated more than two children as on the relevant date of seeking an elected office
under the Act. The substance of the provision is that it does not compel directly anyone to
stop procreation, but only disqualifies any person who is otherwise eligible to seek
election to various public offices coming within the ambit of the Andhra Pradesh
Panchayat Raj Act, 1994 or declares such persons who have already been holding such
offices to be disqualified from continuing in such offices if they procreate more than two
children.
25. Whether creation of a restriction such as the one created in this case, would in fact
achieve the object sought to be achieved, cannot be demonstrated in proceedings like this,
but however, the legislative measure is reasonably be connected with the object sought to
be achieved. In our considered view, the inquiry must stop there and this Court would not
be justified in making a further inquiry as to what extent such a purpose would be
achieved. The fact remains that the population growth is one of the major problems
facing this country and any measure to control the population growth unless it
impermissibly violates some constitutionally protected right, must be upheld as a legally
permissible exercise of legislative power.....
27. This has been the consistent view of the Supreme Court till today. Therefore, the
submission made on behalf of the petitioners 'right to privacy' is infringed, is untenable
and must be rejected.
Case Highlights
The right of reproductive autonomy is a component of the right to privacy.
A provision disqualifying a person from standing for elections due to the
number of children had, does not violate the right to privacy.
Measures to control population growth shall be considered legal unless
they impermissibly violate a fundamental right.
Mr. X v. Hospital Z, Supreme Court of India,157 (1998 and 2002)

This was a very interesting case regarding the right to privacy in the realm of the health
of an individual. The petitioner was engaged to be married and thereafter during tests for
some other illness in the hospital it was found that the petitioner was HIV positive. This
information was released by the doctor to the petitioners family and through them to the
family of the girl to whom the petitioner was engaged, all without the consent of the
petitioner. The Supreme Court initially held that a person could not invoke his right to
privacy to prevent a doctor from disclosing his HIV-positive status to others. It was
157
33 | P a g e
ruled that in respect of HIV-positive persons, the duty of confidentiality between the
doctor and patient could be compromised in order to protect the health of other
individuals. The Court held that in such a case disclosure by the Doctor could not be
violative of either the rule of confidentiality or the patients right of privacy as the person
with whom the patient was likely to be married was saved in time by such disclosure. The
Court held that:
25. As one of the basic Human Rights, the right of privacy is not treated as
absolute and is subject to such action as may be lawfully taken for the prevention
of crime or disorder or protection of health or morals or protection of rights and
freedoms of others.
26. 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.
28. 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. Akali 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.
However, upon a separate petition filed later, the Supreme Court in Mr. X v. Hospital
Z,158 dated 10-12-2003, had to decide whether a person suffering from HIV (+)
contracting marriage with a willing partner after disclosing the fact of disease to that
partner will be committing an offence of negligently spreading infection or disease159. In
substance, the petitioner wanted the Court to clarify that there is no bar for the marriage,
if the healthy spouse consents to marry in spite of being made aware of the fact that the
other spouse is suffering from the said disease. The three Judge Bench of the Supreme
Court held that if an HIV-positive person contracted marriage with a willing partner, then
the same would not constitute the offences defined by the Indian Penal Code. However
even the revised judgment did not touch upon the original conclusion that the right to
privacy and is subject to such action as may be lawfully taken for the prevention of crime
or disorder or protection of health or morals or protection of rights and freedoms of
others.
From a reading of this case, it could be argued that this principle of disclosure to the
person at risk may be applicable to other communicable and life threatening diseases as
well, while a conservative opinion would be that this principle should only be applied to
HIV+ cases. It may also be noted that the Court in this case did not discuss whether
disclosure of such a disease may be made to only the persons at risk or to the public in
158
159
Sections 269 and 270 of the IPC.
34 | P a g e
general, although it would be safe to say that since most cases as well as medical ethics
require the doctors to keep the patients health records private, it is highly unlikely that
disclosure can be made to the public in general.
Case Highlights
A disclosure can be made regarding the HIV+ status of a person if such

disclosure would prevent another person from contracting the same disease.
There is no bar on an HIV+ person to marry someone provided the fact that the
person is HIV+ has been disclosed to the potential spouse.
Right to privacy and is subject to such action as may be lawfully taken for the
prevention of crime or disorder or protection of health or morals or protection
of rights and freedoms of others
M. Vijaya v. Chairman and Managing Director, Singareni Collieries Co. Ltd.160 (2001)
In M. Vijaya v. Chairman and Managing Director, Singareni Collieries Co. Ltd.161 the
petitioner alleged that she was infected with AIDS on account of the negligence on the
part of the authorities of Maternity and Family Welfare Hospital, Godavarikhani, a
hospital under the control of Singareni Collieries Company Ltd., (SCCL), in conducting
relevant precautionary blood tests before transfusion of blood of her brother (donor) into
her body when she was operated for hysterectomy (Chronic Cervicitis) at the hospital.
The lady wrote to the Court asking it to treat the letter as a Public Interest Litigation and
give a direction to SCCL to provide sufficient financial assistance. The Court however
expanded the scope of the case having regard to the importance and magnitude of the
problem, thereby also dealing with issues of medical confidentiality and privacy of HIV
patients. While discussing the conflict between the right to privacy of an HIV infected
person and the duty of the state to prevent further transmission the High Court held as
follows:
54. There is an apparent conflict between the right to privacy of a person
suspected of HIV not to submit himself forcibly for medical examination and the
power and duty of the State to identify HIV infected persons for the purpose of
stopping further transmission of the virus. In the interests of the general public, it
is necessary for the State to identify HIV positive cases and any action taken in
that regard cannot be termed as unconstitutional as under Article 47 of the
Constitution, the State was under an obligation to take all steps for the
improvement of the public health. A law designed to achieve this object, if fair
and reasonable, in our opinion, will not be in breach of Article 21 of the
160
161
35 | P a g e
Constitution of India.
58. In the event of conflict between the individual right and public right which
more often occurs while dealing with the cases of HIV-AIDS, the Roman Law
principle 'Salus Populi est Suprema' (regard for the public health (welfare) is the
highest law) -must apply. This maxim is based on the implied agreement of a
member of the society that his own individual interest and welfare shall in cases
of necessity yield to that of the community and that his life and liberty under
certain circumstances be placed in jeopardy or even sacrificed for the public good
See Broom's Legal Maxims-10th Edn, 1989 - Sweet and Maxwel.
62. Yet another aspect of the matter is whether compelling a person to take HIV
test amounts to denying the right to privacy? In Kharak Singh v. State of UP.,
Govind v. State of M.P. and other cases, the Supreme Court held that right to
privacy is one of the penumbral rights of Article 21 of the Constitution. In all
situations, a person can be asked to undergo HIV test with informed consent. If a
person declines to take a test, is it permissible to compel such person to take the
test? The question is whether right to privacy is violated if a person is subjected to
such test by force without his consent? By the end of 1991, 36 Federal States in
USA enacted legislations regarding informed consent for HIV test. These
legislations intended to promote voluntary test and risk reduction counselling. In
USA, law also applies for involuntary tests and disclosure of information about
the people in prisons, mental hospitals, juvenile facilities and residential homes
for menially disabled persons. (See AIDS Law Today - Scott Burry and others
published by Yale University- 1993).
63. In India there is no general law as such compelling a person to undergo HIVAIDS test. Indeed, Article 20 of the Constitution states that no person accused of
any offence shall be compelled to be a witness against himself. Be that as it may,
under Prison Laws, See Sections 24, 37, 38 and 39 of The Prisons Act, 1894
(Central Act 9 of 1894) Rules 583 to 653 (Chapter XXXV) and Rules 1007 to
1014 (Chapter LVII) of Andhra Pradesh Prisons Rules, 1979, as soon as a
prisoner is admitted to prison, he is required to be examined medically and the
record of prisoner's health is to be maintained in a register. Women prisoners can
only be examined by the matron under the general or special powers of the
Medical Officer. As per Section 37 of the Prisons Act, any prisoner wanting to be
medically examined or appearing to be sick has to be reported before the Jailor
who in turn is liable to call the attention of the Medical Officer in that behalf and
all the directions issued by the Medical Officer are to be recorded.
64. Under the ITP Act, the sex workers can also be compelled to undergo HIV/
AIDS test. When sex workers are detained in corrective institutions or welfare
homes either under Section 10-A or under Section 17(4) or 19(2) of the Act, there
are adequate provisions for medical examination. There are also provisions in
segregating rescued women who are suffering from venereal diseases. We may
36 | P a g e
also notice that Section 2 of Dissolution of Muslim Marriage Act, 1939, Section
32 of Parsi Marriage and Divorce Act, 1936, Section 10 of Indian Divorce Act,
1869, Section 13 of Hindu Marriage Act, 1956 and Section 27 of the Special
Marriage Act, 1955 make incurable veneral diseases of either of spouses a ground
for divorce. Further under Sections 269 and 270 of the Indian Penal Code, 1860, a
person can be punished for negligent act of spreading infectious diseases.
65. In cases of divorce on the ground that the other spouse in suffering from
HIV/AIDS or in case under Sections 269 and 270 I.P.C., can the person be
compelled to give blood specimen for HIV test. The immunity under Article 20
does not extend to compulsion of giving of blood specimens.
After mapping legislation that permit the invasion of bodily privacy, the Court concluded
that they are not comprehensive enough to enable the State to collect information
regarding patients of HIV/AIDS and devise appropriate strategies and therefore the State
should draft a new legislation in this regard. Further the Court gave certain directions to
the state regarding how to handle the epidemic of HIV/AIDS and one of those directions
was that the Identity of patients who come for treatment of HIV+/AIDS should not be
disclosed so that other patients will also come forward for taking treatment.
Case Highlights
The right to privacy of a person suspected to be HIV+ would be subordinate to

the power and duty of the state to identify HIV+ patients in order to protect
public interest and improve public health. However any law designed to achieve
this object must be fair and reasonable.
In a conflict between the individuals privacy right and the publics right in
dealing with the cases of HIV-AIDS, the Roman Law principle 'Salus Populi est
Suprema' (regard for the public wealth is the highest law) applies when there is
a necessity.
The Court has acknowledged that in all situations, a person can be asked to
undergo HIV test with informed consent.
Identity of patients who come for treatment of HIV+/AIDS should not be

disclosed so that other patients will also come forward for taking treatment.
Sharda v. Dharmpal,162 (2003)

The basic question in this case was whether a party to a divorce proceeding can be
compelled to a medical examination. The wife in the divorce proceeding refused to
submit herself to medical examination to determine whether she was of unsound mind on
162
37 | P a g e
the ground that such an act would violate her right to personal liberty. Discussing the
balance between protecting the right to privacy and other principles that may be involved
in matrimonial cases such as the best interest of the child in case child custody is also in
issue, the Court held:
75. If the nature of the information relates directly to the well-being of the child
or to the parent's ability to adequately care for child, and the court believes the
child is potentially in danger, courts are likely to admit the information despite a
patient's expectation of confidentiality. There are two competing interests
involved when a court determines whether to compel discovery of a patientlitigant's mental health records over his objection in a child custody dispute. The
first involves the privacy, confidentiality and privilege expectation of both the
patient and the treating mental health professional in those communications. The
second involves the application of the best interests of the child(ren) standard.
Virtually every jurisdiction in the United States makes a child custody
determination based upon the "best interest of the child".
76. "Privacy" is defined as "the state of being free from intrusion or disturbance in
one's private life or affairs". Mental health treatment involves disclosure of one's
most private feelings. In sessions, therapists often encourage patients to identify
"thoughts, fantasies, dreams, terrors, embarrassments, and wishes". To allow
these private communications to be publicly disclosed abrogates the very fibre of
an individual's right to privacy, the therapist-patient relationship and its
rehabilitative goals. However, like any other privilege the psychotherapist-patient
privilege is not absolute and may only be recognized if the benefit to society
outweigh the costs of keeping the information private. Thus if a child's best
interest is jeopardized by maintaining confidentiality the privilege may be
limited.
The Court further held that:
81. The matter may be considered from another angle. In all such matrimonial
cases where divorce is sought, say on the ground of impotency,
schizophrenia...etc. normally without there being medical examination, it would
be difficult to arrive at a conclusion as to whether the allegation made by his
spouse against the other spouses seeking divorce on such a ground, is correct or
not. In order to substantiate such allegation, the petitioner would always insist on
medical examination. If respondent avoids such medical examination on the
ground that it violates his/her right to privacy or for a matter right to personal
liberty as enshrined under Article 21 of the Constitution of India, then it may in
most of such cases become impossible to arrive at a conclusion. It may render the
very grounds on which divorce is permissible nugatory. Therefore, when there is
no right to privacy specifically conferred by Article 21 of the Constitution of
India and with the extensive interpretation of the phrase "personal liberty" this
right has been read into Article 21, it cannot be treated as absolute right. What is
emphasized is that some limitations on this right have to be imposed and
particularly where two competing interests clash. In mattes of aforesaid nature
where the legislature has conferred a right upon his spouse to seek divorce on
38 | P a g e
such grounds, it would be the right of that spouse which comes in conflict with
the so-called right to privacy of the respondent. Thus the Court has to reconcile
these competing interests by balancing the interests involved.
82. If for arriving at the satisfaction of the Court and to protect the right of a party
to the lis who may otherwise be found to be incapable of protecting his own
interest, the Court passes an appropriate order, the question of such action being
violative of Article 21 of the Constitution of India would not arise. The Court
having regard to Article 21 of the Constitution of India must also see to it that the
right of a person to defend himself must be adequately protected.
.
85. So viewed, the implicit power of a court to direct medical examination of a
party to a matrimonial litigation in a case of this nature cannot beheld to be
violative of one's right of privacy.
It is interesting to note that in the previous cases it was a balance between the competing
rights of two people, whereas in this case it was more about the right of one person vis-avis the best interest of a child.
Case Highlights
If the best interest of a child is in issue in the case then the patients right to
privacy and confidentiality would get limited.
In a number of matrimonial cases the relief is based on medical facts (impotency,

mental illness, etc. of the spouse) and these can only be decided after a medical
examination. Thus the right to privacy of an individual would be subordinate to
the power of a court to arrive at a conclusion in a matrimonial dispute and the
right of a party to protect his/her rights in a Court of law would trump the right
to privacy of the other individual
Conclusion
Principle
1
Openness
2
Accountability
3
Oversight
4
5
Purpose Limitation
6
Choice and Consent
7
Notice
8
9
Security
10
11
Disclosure
39 | P a g e
# represented
***
*
*
****
*******
*******
*****
When analyzing the relevant legislation for the Indian Health sector, there are a number
of provisions that speak to the principles of collection limitation, security, and disclosure.
Surprisingly, the principles of choice and consent are not strongly represented in present
legislation. Similarly other principles like notice and quality and verification are also not
recommended. On the whole the legislations and regulations governing the health sector
in India are fairly well aware of privacy issues and do try to address them at a policy level
even though implementation is still playing catch up.
Ibid section 38
Ibid section 85
iii
PMDT Act section 25
ii
40 | P a g e

Health and Privacy PDF

Uploaded by

Copyright:

Available Formats

Health and Privacy PDF

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Health and Privacy PDF

Uploaded by

Copyright:

Available Formats

DRAFT

police on a written requisition, 3) when demanded by insurance companies as provided

Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations,

Code of Ethics Regulations, 2002 available at

Code of Ethics Regulations, 2002 Chapter 7, Section 7.16.

Regulations framed by the Medical Council of India cannot override the

The Right to Information Act, 2005 would prevail over an exercise in

The health records of a person in police or judicial custody, if admitted

Mental Health Act, 1987

Medical certificates: Medical certificates, issued by a doctor, and contain

The Mental Health Act, 1987.

the detention of a person in a psychiatric hospital or psychiatric nursing home.31

Disclosure of personal records by inspecting officers: An officer inspecting health

Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection)

The Mental Health Act, 1987, s. 21(2).

Over the age of thirty-five

If any person who contravenes any Imprisonment up to three months and/or a

The use of Silent Observer system on sonograph machines has enough

Medical Termination of Pregnancy Act, 197142

woman undergoing an abortion.49 Hospitals are prohibited from disclosing the

POLICY AND REGULATIONS

Medical Termination of Pregnancy Regulations, 2003, Regulation 4(2).

exercise extra caution when conducting genetic counselling, so as to refrain from

Access and Correction

National Policy for Persons with Disabilities, 200663

Collection for Employment: The Persons with Disabilities (Equal Opportunities,

Choice and Consent

Insurance Regulatory and Development Authority (Third Party Administrators)

outlining specific policies vis--vis the privacy of personal information.

IRDA Health Insurance Portability Guidelines81

The IRDA, Health Insurance Portability Guidelines. (2011).

PROJECTS AND PRACTICES

that subjecting an accused to narco analysis is not tantamount to testimony by

Business Process Outsourcing

identity documents were required to get enrolled in government ART programmes.125

Iyengar, P. (2011) Country Report: Privacy in India. P. 105.

Questions related to an individuals reproductive issues are personal

Ms. X vs. Mr. Z & Anr,153 (2001)

96 (2002) DLT 354.

B.K Parthasarthi vs. Government of Andrha Pradesh,155 (1999)

AIR 2000 A.P 156.

Mr. X v. Hospital Z, Supreme Court of India,157 (1998 and 2002)

A disclosure can be made regarding the HIV+ status of a person if such

The right to privacy of a person suspected to be HIV+ would be subordinate to

Identity of patients who come for treatment of HIV+/AIDS should not be

Sharda v. Dharmpal,162 (2003)

In a number of matrimonial cases the relief is based on medical facts (impotency,

You might also like