Health Care Notes 9 Sem

Chanderprabhu Jain College of Higher Studies
&
School of Law
An ISO 9001:2015 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi & Approved by Bar Council of India)
E-NOTES
Class : B.A. LL.B IX Semester
Paper Code : LLB 509
Subject : Health Care Laws
Faculty Name : Ms. Jyoti Sharma
UNIT-I
Meaning- Health Care

Healthcare, health-care, or healthcare is the maintenance or improvement of health via
the prevention, diagnosis, and treatment of disease, illness, injury, and other physical and
mental impairments in people. Health care is delivered by health professionals in allied health
fields. Physicians and physician associates are a part of these healths.
Health care systems are organizations established to meet the health needs of targeted
populations. According to the World Health Organization (WHO), a well-functioning health
care system requires a financing mechanism, a well-trained and adequately paid workforce,
reliable information on which to base decisions and policies, and well maintained health
facilities to deliver quality medicines and technologies.
Healthcare at National Level

The Indian healthcare scenario presents a spectrum of contrasting landscapes. At one end of the
spectrum are the glitzy steel and glass structures delivering high tech medicare to the
well- heeled, mostly urban Indian.
At the other end are the ramshackle outposts in the remote reaches of the “other India” trying
desperately to live up to their identity as health subcenters, waiting to be transformed to
shrines of health and wellness, a story which we will wait to see unfold. With the rapid pace of
change currently being witnessed, this spectrum is likely to widen further, presenting even more
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complexity in the future.

Five “A's” for our consideration
1. Awareness or the lack of it: How aware is the Indian population about important
issues regarding their own health? Studies on awareness are many and diverse, but lacunae in
awareness appear to cut across the lifespan in our country. Adequate knowledge
regarding breastfeeding practice was found in only one-third of the antenatal mothers in two
studies
2. Access or the lack of it: Access (to healthcare) is defined by the Oxford
dictionary as “The right or opportunity to use or benefit from (healthcare)” Again, when we
look beyond the somewhat well-connected urban populations to the urban underprivileged,
and to their rural counterparts, the question “What is the level of access of our population to
healthcare of good quality?” is an extremely relevant one.
3. Absence or the human power crisis in healthcare: Any discussion on healthcare
delivery should include arguably the most central of the characters involved – the human
workforce. Do we have adequate numbers of personnel, are they appropriately trained, are
they equitably deployed and is their morale in delivering the service reasonably high?
4. Affordability or the cost of healthcare: Quite simply, how costly is healthcare in
India, and more importantly, how many can afford the cost of healthcare?
Accountability or the lack of it: Being accountable has been defined as the
procedures and processes by which one party justifies and takes responsibility
for its activities
Healthcare As An Issue At International Level
The right to health has evolved rapidly under international law, and its normative
clarification has significant conceptual and practical implications for health policy.
The framework that international human rights offer with respect to health shifts
the analysis of issues such as disparities in treatment in the United States from
questions of quality of care to fundamental matters of democracy and social justice,
as well as suggesting avenues for accountability.
Remedies Available Under The Indian Constitution
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Right to Health is not included as an explicit fundamental right in the Indian Constitution. Most
provisions related to health are in Part IV {Directive Principles}. These are: Article 38 says that
the state will secure a social order for the promotion of welfare of the people. Providing
affordable healthcare is one of the ways to promote welfare.
Article 41 imposes duty on state to provide public assistance in cases of unemployment, old
age, sickness and disablement etc. Article 42 makes provision to protect the health of infant and
mother by maternity benefit. Article 47 makes it duty of the state to improve public health,
securing of justice, human condition of works, extension of sickness, old age, disablement and
maternity benefits and also contemplated. Further, State’s duty includes prohibition of
consumption of intoxicating drinking and drugs are injurious to health.
Article 48A ensures that State shall Endeavour to protect and impose the pollution free
environment for good health.
Right To Health Vis-À-Vis The Right To Confidentiality

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.
Medical confidentiality promotes the individual's medical autonomy, by sheltering those
seeking morally controversial medical care from outside criticism and interference with
decisions.
Patients must feel comfortable sharing private information about their bodily functions,
physical and sexual activities, and medical history.
This will make them more willing to seek information and support to fully understand and
evaluate their options so that they can make the most informed medical decisions.
The right to privacy in India has been a neglected area of study and engagement. Although
sectoral legislation deals with privacy issues, India does not as yet have a horizontal legislation
that deals comprehensively with privacy across all contexts.
The absence of a minimum guarantee of privacy is felt most heavily by marginalized
communities, including HIV patients, children, women, sexuality minorities, prisoners, etc.
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people who most need to know that sensitive information is protected.

The Medical Council of India’s Code of Ethics Regulations protects patient confidentiality by
stating that the physician “shall not disclose the secrets of a patient that have been learnt in the
exercise of his/her profession except in a court of law under orders of the Presiding Judge. The
RTI Act was designed to promote transparency in government, not to permit the invasion of the
privacy of individuals who use government hospitals or who altruistically participate in
government-funded research. The Act generally does not threaten the confidentiality of
the doctor-patient or researcher-subject relationship.
In a 2007 Arjesh Kumar Madhok vs Centre for Fingerprinting & Diagnostics (CDFD),
Ministry of Science and Technology, Hyderabad, the Central Information Commission (CIC)
specifically upheld that information regarding the purpose and results of medical testing was
exempted from disclosure under the RTI Act because it was, as the PIO had initially
determined, “personal information the disclosure of which has no relationship to any
public activity or interest and would cause unwarranted invasion of the privacy of the
individual. Further, the CIC held the information had been made available within the doctor-
patient fiduciary relationship, and was also exempt from disclosure on that ground.
Access To Medical Records

Well-maintained medical records unquestionably help doctors and hospitals in their defence in
cases of medical negligence.
In Md. Aslam v. Ideal Nursing Home, the State Commission made a strong note of the lack
of regulations governing nursing homes and made suggestions regarding medical record-
keeping.
In Poona Medical Foundation Ruby Hall Clinic v. Marutirao L. Titkare, the National
Commission held that not providing medical records did not constitute negligence or
deficiency in service, as there was no legal duty cast to furnish such documents to a patient. It
further held that no material was placed before the Commission to show that either by law, or
by convention or by practice, was there any obligation on the part of the hospital to furnish to
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the patient full particulars of the surgical operation performed on him.
According to the Data Protection Act, 1984, an individual should be informed by

anyone holding computerised information whether that information includes his/her personal
data and should be supplied with copies of it. The Access to Medical Reports Act, 1988 states
that insurers and employers may not be shown a report until the patient has seen and
commented on it and has consented to its disclosure. According to the Access to Health
Records Act, 1990 patients have access to their health records.
Health is a vital indicator of human development and human development is the basic
ingredient of economic and social development.
In India, the right to health care and protection has been recognized, since early times,
Independent India approached the public as the right holder and the state as the duty-bound
primary provider of health for all.
As our country is a founder member of the United Nations, it has ratified various international
conventions promising to secure health care right of individuals in society.
Health is a vital indicator of human development and human development is the basic
ingredient of economic and social development.
In India, the right to health care and protection has been recognized, since early times,
Independent India approached the public as the right holder and the state as the duty-bound
primary provider of health for all.
As our country is a founder member of the United Nations, it has ratified various international
conventions promising to secure health care right of individuals in society.
Sheela Barse v. Union of India (1986) : Public interest petitions have been filed under
Article 21 in response to violations of the right to health. They have been filed to provide:
special treatment to children in jail
1. on pollution hazards
2. against hazardous drugs
3. against inhuman conditions in after-care homes
4. on the health rights of mentally ill patients
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5. on the rights of patients in cataract surgery camps

6. for immediate medical aid to injured persons
7. on conditions in tuberculosis hospitals
8. on occupational health hazards
9. on the regulation of blood banks and availability of blood products
10. on passive smoking in public places
11. Most provisions related to health are in Part IV {Directive Principles}.
These are: Article 38 says that the state will secure a social order for the promotion of welfare
of the people. Providing affordable healthcare is one of the ways to promote welfare.
Article 41 imposes duty on state to provide public assistance in cases of unemployment, old
age, sickness and disablement etc. Article 42 makes provision to protect the health of
i n f a n t and mother by maternity benefit. Article 47 make it duty of the state to improve public
health, securing of justice, human condition of works, extension of sickness, old age,
disablement and maternity benefits and also contemplated. Further, State’s duty includes
prohibition of consumption of intoxicating drinking and drugs are injurious to health.
Article 48A ensures that State shall Endeavour to protect and
impose the pollution free environment for good health.
Right to health vis-à-vis the Right to Confidentiality

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.
Medical confidentiality is a set of rules that limits access to information discussed between a
person and their healthcare practitioners. With only a few exceptions, anything we discuss
with our doctor must, by law, be kept private between the two o and the organisation they work
for.
Medical confidentiality promotes the individual's medical autonomy, by sheltering those
seeking morally controversial medical care from outside criticism and interference with
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decisions. Patients must feel comfortable sharing private information about their bodily
functions, physical and sexual activities, and medical history. This will make them more willing
to seek information and support to fully understand and evaluate their options so that they can
make the most informed medical decisions.
Privacy and Confidentiality: A Right
1. Right to Appropriate Medical Care and Humane Treatment,
2. Right to Information,
3. The Right to Choose Health Care Provider and Facility,
4. Right to Medical Records, Right to Privacy and Confidentiality etc.
So, the right to privacy and confidentiality is one of the rights given to the patient where the
patient has the right to be free from public exposure. But are subject to certain exceptions
which are:-
a. If the mental or physical condition is in question and the Court orders the patient to
surrender himself to a physical and mental examination by a physician or;
b. When the public health and safety demands or;
c. When the patient himself gives up his right in writing or;
It can be disclosed to the parents or the legal guardian of the patient where the
patient is not of legal age or mentally incapacitated; and if the patient is of legal
age, then, the information can be disclosed with his right to choose the person to
whom the medical information should be communicated.
Laws governing the Confidentiality and Privacy of a patient in India
According to the Indian Medical Council (Professional Conduct, Etiquette and
Ethics) Regulations, 2002, it has been stated under chapter 7- (7.14) that the registered medical
practitioner shall not divulge any of the secrets of a patient that have been acquired in
the exercise of his/her professional skill or while conducting the treatment.
Chapter 8- (8.2)states about the consequences of the violation. It explains that if any complaint
is made with regards to the professional misconduct of any registered medical practitioner and
the same was brought before the Medical Council of Disciplinary action, then, upon the
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receipt of the complaint, the appropriate medical council will hold an enquiry and will also give
the opportunity to the registered medical practitioner to be heard in person or by a pleader. And
if during the course of the enquiry or proceeding, the registered medical practitioner is found
guilty of committing professional misconduct, then he will be awarded with the punishment as
it deems fit with the situation by the Medical Council or they may also direct the removal of his
medical practice altogether or for only a specified period.
And under chapter 8- (8.5), if the decision is pending registered against him, then the
appropriate Council may restrict the physician from performing the procedure or practice
which is under research/scrutiny on the complaint.
Other than the ‘code of ethics’ there are no such specific laws in India which protect the privacy
and confidentiality of the patient’s data but the Health Ministry has proposed a
Digital Information Security in Healthcare AC (DISHA) in 2018 which is yet to be finalised.
It is regarded as likely to provide a complete legal framework to ensure the privacy of
the patients, especially in the era of where more than paper electronic health records are used.
If it gets finalised, then it will give the people complete ownership of their health
data.
Exception
Absolute privacy and confidentiality is not possible under the healthcare sector because if the
doctors start keeping all health records a secret or confidential, despite knowing the fact that if
such information is not communicated to the public then it will result in the spread of
a dangerous disease from his patient such as HIV/AIDS, Tuberculosis etc. So, sometimes in the
interest for the public good, the patient’s data has to be communicated.
Surupsingh Hrya Naik v. State of Maharashtra (2007)
In this case, the Medical Council Code of Ethics and Right to Information Act, 2005 was
in conflict. In this case, it was questioned that making the health records public, under the Right
to Information Act would constitute a violation of the right to privacy. So in this situation, the
Bombay High Court held that the Right to Information will supersede the Right to Privacy and
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Confidentiality
Radiological & Imaging Association v. Union of India, 2011
In this case, the petitioner challenged the circular of the Collector and District
Magistrate, Kohlapur which required that the Radiologist and Sonologist should submit the on-
line form F under the Pre-conception and Pre-natal Diagnostic Techniques Rules (PNDT) and
also to install the SIOB (silent observer) for all the sonography machines, as a part of
`save the baby’ campaign for improving sex ratio in the district. The petitioner challenged
this on the grounds that it violates the privacy of their patients. The Bombay High Court held
that the images are stored in the silent observer and are not transmitted online to any server
and thus, it remains fixed in the ultrasound machine and only after the request of the Collector/
the civil surgeon, in the presence of the concerned radiologist/ sonologist/ doctor in-charge of
the Ultrasound Clinic, the silent observer will be opened.
The use of a silent observer system on a sonography machine has necessary safeguards or
protection and it does not violate any privacy rights as the declining sex ratio of the country was
considered a compelling public interest that could override the right to privacy.
The right to privacy in India has been a neglected area of study and engagement. Although
sectoral legislation deals with privacy issues, India does not as yet have a horizontal legislation
that deals comprehensively with privacy across all contexts. The absence of a minimum
guarantee of privacy is felt most heavily by marginalized communities, including HIV patients,
children, women, sexuality minorities, prisoners, etc. - people who most need to know that
sensitive information is protected.
Access To Medical Records
It is very important for the treating doctor to properly document the management of a patient
under his care. Medical record keeping has evolved into a science of itself. This will be the only
way for the doctor to prove that the treatment was carried out properly. Moreover, it will also be
of immense help in the scientific evaluation and review of patient management issues. Medical
records form an important part of the management of a patient. It is important for the doctors
and medical establishments to properly maintain the records of patients for two important
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reasons.
The traditional method of keeping records that is followed in most of the hospitals across India
is the manual method involving papers and books. There are serious limitations of manual
record keeping including the need for large storage areas and difficulties in the retrieval of
records. However, it is legally more acceptable as documentary evidence as it is difficult to
tamper with the records without detection. The present era has seen the computerization of
medical records that are neat and tidy, and can be easily stored and retrieved
Well-maintained medical records unquestionably help doctors and hospitals in their defence in
cases of medical negligence.
In Md. Aslam v. Ideal Nursing Home, the State Commission made a strong note of the lack
of regulations governing nursing homes and made suggestions regarding medical record-
keeping.
In Poona Medical Foundation Ruby Hall Clinic v. Marutirao L. Titkare, the National
Commission held that not providing medical records did not constitute negligence or
deficiency in service, as there was no legal duty cast to furnish such documents to a patient. It
further held that no material was placed before the Commission to show that either by law, or
by convention or by practice, was there any obligation on the part of the hospital to furnish to
the patient full particulars of the surgical operation performed on him.
According to the Data Protection Act, 1984, an individual should be informed by anyone
holding computerised information whether that information includes his/her personal data and
should be supplied with copies of it.
The Access to Medical Reports Act, 1988 states that insurers and employers may not be shown
a report until the patient has seen and commented on it and has consented to its disclosure.
According to the Access to Health Records Act, 1990 patients have access to their
health records.
The Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations,
2002 states that every physician shall maintain the medical records pertaining to his/her
indoor patients for a period of three years from the date of commencement of the treatment. If
any request is made for medical records either by the patients/authorised attendant or legal
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authorities involved, the documents shall be issued within a period of 72 hours and refusal to
do so would be misconduct.
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Chanderprabhu Jain College of Higher Studies

Class : B.A. LL.B IX Semester

Paper Code : LLB 509

Subject : Health Care Laws

Faculty Name : Ms. Jyoti Sharma

Meaning- Health Care

Healthcare at National Level

complexity in the future.

Right To Health Vis-À-Vis The Right To Confidentiality

people who most need to know that sensitive information is protected.

Access To Medical Records

the patient full particulars of the surgical operation performed on him.

According to the Data Protection Act, 1984, an individual should be informed by

5. on the rights of patients in cataract surgery camps

Right to health vis-à-vis the Right to Confidentiality

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