Patients’ Rights

The Constitution of India, 1950 ○ Art. 21 – Protection of life and personal liberty ○ Art. 47 – Duty of
the State to raise the level of nutrition and the standard of living and to improve public health ○
Entry 6, List II (State List) – Public health and sanitation; hospitals and dispensaries

Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002

Clinical Establishment(Registration and Regulation) Act,

2010 Drugs and Cosmetic Act, 1940 Consumer Protection Act,

1986 Indian Penal Code, 1860 & Code of Criminal Procedure, 1973.

Protocols and guidelines issued by Central and State Government

Charter of Patients’ Rights - NHRC 1. Right to information 2. Right to records and reports 3. Right to
emergency medical care 4. Right to informed consent 5. Right to confidentiality, human dignity and
privacy 6. Right to second opinion 7. Right to transparency in rates and care according to the
prescribed rates wherever relevant 8. Right to non-discrimination 9. Right to safety and quality care
according to standards 10. Right to choose alternative treatment options, if available 11. Right to
choose source for obtaining medicines or tests 12. Right to proper referral and transfer, which is free
from perverse commercial influences 13. Right to protection of patients involved in clinical trials 14.
Right to protection of participants involved in biomedical and health research 15. Right to take
discharge of patient, or receive body of deceased from hospital 16. Right to patient education 17.
Right to be heard and seek redressal

Right to Information

Every patient has a right to adequate relevant information about the nature, cause of illness,
provisional / confirmed diagnosis, proposed investigations and management, and possible
complications to be explained at their level of understanding in language known to them. The
treating physician has a duty to ensure that this information is provided in simple and intelligible
language to the patient to be communicated either personally by the physician, or by means of his /
her qualified assistants.

Every patient and his/her designated caretaker have the right to factual information regarding the
expected cost of treatment based on evidence. The hospital management has a duty to
communicate this information in writing to the patient and his/her designated caretaker. They
should also be informed about any additional cost to be incurred due to change in the physical
condition of the patient or line of treatment in writing.

On completion of treatment, the patient has the right to receive an itemized bill, to receive an
explanation for the bill(s) regardless of the source of payment or the mode of payment, and receive
payment receipt(s) for any payment made. Patients and their caretakers also have a right to know
the identity and professional status of various care providers who are providing service to him / her
and to know which Doctor / Consultant is primarily responsible for his / her care. The hospital
management has a duty to provide this information routinely to all patients and their caregivers in
writing with an acknowledgement

Right to Records and Reports

Every patient or his caregiver has the right to access originals / copies of case papers, indoor patient
records, investigation reports (during period of admission, preferably within 24 hours and after
discharge, within 72 hours). This may be made available wherever applicable after paying
appropriate fees for photocopying or allowed to be photocopied by patients at their cost.

The relatives / caregivers of the patient have a right to get discharge summary or in case of death,
death summary along with original copies of investigations. The hospital management has a duty to
provide these records and reports and to instruct the responsible hospital staff to ensure provision
of the same are strictly followed without fail Relevant laws and policies

● Annexure 8 of Clinical Establishment Act Standards for Hospital (Level 1A and 1B)

● Patients’ Charter by National Accreditation Board for Hospitals & Healthcare Providers
(constituent executive board of QCI)

● IMC Regulations 2002 ○ Reg. 1.3 – Maintenance of medical records r/w Annexure 3 ○ Reg. 3 –
Duties of Physician in Consultation ○ Reg. 7 – Misconduct (7.2)

● Consumer Protection Act 2019 Sec. 2 (11) – ‘deficiency’ […deliberate withholding of relevant
information by such person to the consumer’]

● Right to Information Act, 2005

● Specific legislations: PCPNDT Act and Rules;

Medical Termination of Pregnancy Acts and Rules

Mental Healthcare Act 2017 Section 25.

Right to access medical records: (1) All persons with mental illness shall have the right to access their
basic medical records as may be prescribed.

(2) The mental health professional in charge of such records may withhold specific information in the
medical records if disclosure would result in,–– (a) serious mental harm to the person with mental
illness; or (b) likelihood of harm to other persons.

(3) When any information in the medical records is withheld from the person, the mental health
professional shall inform the person with mental illness of his right to apply to the concerned Board
for an order to release such information.

Shri Prabhat Kumar v. Directorate of Health Services, GNTCD, Delhi (Central Information
Commission, 2015 SCC OnLine CIC 2742) ‘Information’ under section 2(f)

16. This Commission has examined the issue of right of patient to have the medical records in Nisha
Priya Bhatia v. Institute of Human Behaviour and Allied Sciences GNCTD, File No.
IC/AD/A/2013/001681-SA, decided 23 July 2014) and stated “the Patient has a right to his/her
medical record and Respondent Hospital Authorities have a duty to provide the same under Right to
Information Act, 2005, Consumer Protection Act, 1986, The Medical Council Act as per world medical
ethics. The Commission recommended the Public Authority to develop a time-frame mechanism of
disclosure of medical records to patients or their relatives with safeguards for privacy and
confidentiality of the patient”. In that order Commission referred to various legislations.

Case Law about Right of information of Patients:

22. There are several decisions by the High Courts and Consumer Commissions establishing the right
of patient to information and duty of the Hospitals to provide the same.

In Kanaiyalal Ramanlal Trivedi v. Dr. Satyanarayan Vishwakarma; 1996 3 CPR 24 (Guj); I (1997) CPJ
332 (Guj); 1998 CCJ 690 (Guj), the hospital and doctor were held guilty of deficiency in service as
case records were not produced before the court to refute the allegation of a lack of standard care.
Thus, if hospital takes up a plea of record destroyed, it was held that it could be a case of negligence.

In S.A. Quereshi v. Padode memorial Hospital and Research Centre II2000 CPJ 463 (Bhopal) it was
held that the plea of destroying the case sheet as per the general practice of the hospitals appeared
to the court as an attempt to suppress certain facts that are likely to be revealed from the case
sheet. The opposite party was found negligent as he should have retained the case records until the
disposal of the complaint.

Explaining the consequences of denial of medical record, it was held that an adverse inference could
be drawn from that.

In case of Dr. Shyam Kumar v. Rameshbhai, Harmanbhai Kachiya; 2002 1 CPR 320, I (2006) CPJ

16 (NC). - The National Commission said that not producing medical records to the patient prevents
the complainant from seeking an expert opinion and it is the duty of the person in possession of the
medical records to produce it in the court and adverse inference could be drawn for not producing
the records. […..] There are several decisions by High Courts and Consumer Dispute Redressal
Commissions which emphasized the right to medical records from hospitals or doctors whether they
are private or public, running for profit or charitable.

41. The Commission, therefore, holds that undoubtedly the appellant, being a patient has specific
right to detailed medical record about treatment under Section 3 of the RTI Act and also under
Consumer Protection Act, 1986”. Hence, the information sought by the appellant is the ‘information’
as per Section 2(f) of RTI Act. Commission's authority to implement RTI of appellant

42. Once the information sought by appellant is ‘information’ under s 2(f) of RTI Act, entire law will
come to the rescue of the right of appellant and the Commission has statutory duty to enforce his
right with all its powers available under RTI Act to secure the information legitimately sought by the
appellant.

46. The Commission observes that under section 2(f) of the RTI Act, it is the duty of the Public
Authority who is vested with the regulatory powers over all the Hospitals, including the Private
Hospitals such as Fortis in Delhi, to see that the right as enshrined in the Medical Council Act, 1971,
and other relevant Acts, is obeyed by the said hospitals. This law and the RTI Act mandates that
every hospital whether it is private or public, to provide the medical record within 72 hours of the
death of the patient. Hence the Commission has authority to implement RTI of the appellant

47. The Commission is not going into the question, whether Fortis Hospital is a public authority or
not. Every person has a right to seek the information, define under section 2(f) of the Act. That right
of the appellant has been violated by the Respondent authority and Fortis Hospital who refused by
stating that the information was confidential and privileged. Considering it as a serious case of
shading the truth in dark, the commission is exercising the powers under section 18 of the RTI Act,
text of which is reproduced as under: […]

48. The above provisions show that the Commission has enough power to summon and enforce
attendance of any persons, compel them to give oral or written evidence on oath and produce the
documents or things and ultimately impose the penalty as prescribed under Section 20 of RTI Act.

51. The Commission also holds that even if the Fortis Hospital is a private body it is not immune from
statutory duty of providing medical record to the patient or his son. Private body cannot claim a
right to take the life of a patient by negligence and when especially it was suspected of medical
negligence, it cannot deny the medical records. In fact, the Commission has every reason to draw an
adverse inference against the hospital, from this unreasonable, unethical, illegal and
unconstitutional denial of information that it is trying to hide something which might establish
medical negligence if disclosed. It is in the interest of justice, establishment of truth, and of course,
reputation or credibility, if the private hospital has and is interested in protecting it, it has to give the
medical record on its own. The Commission is surprised at the defiant attitude of Fortis Hospital in
denial of medical record and indifferent attitude of public authority, the respondents in not securing
it

Maintenance of Records u/ PCPNDT Act and Rules Section 29:

Maintenance of Records [r/w Rule 9 of the PCPNDT Rules]

1. All records, charts, forms, reports, consent letters and all other documents required to be
maintained under this Act and the rules shall be preserved for a period of two years or for such
period as may be prescribed: Provided that, if any criminal or other proceedings are instituted
against any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, the records and all
other documents of such Centre, Laboratory or Clinic shall be preserved till the final disposal of such
proceedings.

2. All such records shall, at all reasonable times, be made available for inspection to the Appropriate
Authority or to any other person authorised by the Appropriate Authority in this behalf. Rule 9:
Maintenance and Preservation of Records: (1) Every Genetic Counselling Centre, Genetic Laboratory,
[Genetic Clinic including a Mobile Genetic Clinic], Ultrasound Clinic and Imaging Centre shall
maintain a register showing, in serial order, the names and addresses of the men or women given
genetic counselling, subjected to pre-natal diagnostic procedures or pre-natal diagnostic tests, the
names of their spouse or father and the date on which they first reported for such counselling,
procedure or test.] [….] Maintenance of Records u/ PCPNDT Act and Rules
(6) All case-related records, forms of consent, laboratory results, microscopic pictures, sonographic
plates or slides, recommendations and letters shall be preserved by the Genetic Counselling Centre,
Genetic Laboratory 29[, Genetic Clinic, Ultrasound Clinic or Imaging Centre] for a period of two years
from the date of completion of counselling, pre-natal diagnostic procedure or pre-natal diagnostic
test, as the case may be. In the event of any legal proceedings, the records shall be preserved till the
final disposal of legal proceedings, or till the expiry of the said period of two years, whichever is
later.

(7) In case the Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic or Ultrasound
Clinic or Imaging Centre maintains records on computer or other electronic equipment a printed
copy of the record shall be taken and preserved after authentication by a person responsible for
such record. See Section 25 of the PCPNDT Act : Penalty for contravention of the provisions of the
Act or rules for which no specific punishment is provided

Right to emergency medical care

As per Supreme Court, all hospitals both in the government and in the private sector are duty bound
to provide basic Emergency Medical Care, and injured persons have a right to get Emergency
Medical Care. Such care must be initiated without demanding payment / advance and basic care
should be provided to the patient irrespective of paying capacity.

It is the duty of the hospital management to ensure provision of such emergency care through its
doctors and staff, rendered promptly without compromising on the quality and safety of the
patients.

Relevant laws and policies

● IMC Regulations 2002 ○ Reg. 2.1.1 – Obligations to the sick ○ Reg. 2.4 – The patient must not be
neglected

● Emergency Care in case of sexual assault ○ Sec. 357C of Code of Criminal Procedure, 1973 read
with Sec. 166B of the Indian Penal Code, 1860 ○ Rule 6 of Protection of Children from Sexual
Offences Rules, 2020

● Medical Termination of Pregnancy Act – Section 5

Parmanand Katara v. Union of India (1989) 4 SCC 286 8.

Article 21 of the Constitution casts the obligation on the State to preserve life. Every doctor whether
at a government hospital or otherwise has the professional obligation to extend his services with
due expertise for protecting life.

No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast
upon members of the medical profession. The obligation being total, absolute and paramount, laws
of procedure whether in statutes or otherwise which would interfere with the discharge of this
obligation cannot be sustained and must, therefore, give way.”

Right to informed consent

 Every patient has a right that informed consent must be sought prior to any potentially hazardous
test/treatment (e.g. invasive investigation / surgery / chemotherapy) which carries certain risks.

It is the duty of the hospital management to ensure that all concerned doctors are properly
instructed to seek informed consent, that an appropriate policy is adopted and that consent forms
with protocol for seeking informed consent are provided for patients in an obligatory manner.

It is the duty of the primary treating doctor administering the potentially hazardous test / treatment
to explain to the patient and caregivers the main risks that are involved in the procedure, and after
giving this information, the doctor may proceed only if consent has been given in writing by the
patient / caregiver or in the manner explained under Drugs and Cosmetic Act Rules 2016 on
informed consent

Relevant laws and policies

● IMC Regulations 2002 ○ Reg. 7.16 – Misconduct (duty to obtain written consent)

● Indian Penal Code, 1860

● Samira Kohli v. Prabha Manchanda, (2008) CPJ 56 (Supreme Court)

Right to confidentiality, privacy and dignity

All patients have a right to privacy, and doctors have a duty to hold information about their health
condition and treatment plan in strict confidentiality, unless it is essential in specific circumstances
to communicate such information in the interest of protecting other or due to public health
considerations.

Female patients have the right to presence of another female person during physical examination by
a male practitioner. It is the duty of the hospital management to ensure presence of such female
attendants in case of female patients.

The hospital management has a duty to ensure that its staff upholds the human dignity of every
patient in all situations. All data concerning the patient should be kept under secured safe custody
and insulated from data theft and leakage.

Relevant laws and policies

● Fundamental right to privacy [Article 21, K.S. Puttaswamy v. Union of India (2017) 10 SCC 1], Mr. X
v. Z Hospital (1998) 8 SCC 296]

● IMC Regulations 2002 ○ Reg. 2.2 – Patience, Delicacy and Secrecy ○ Reg. 7.17 – Misconduct (non-
publication)

● In case of children in conflict with law or in need of care and protection or child victim witness of a
crime ○ Section 74, Juvenile Justice (Care and Protection of Children) Act 2015

● In cases of sexual violence: ○ Section 228A of the Indian Penal Code 1860 – Disclosure of identity
of victim of certain offences ○ Nipun Saxena v. Union of India (2019) 2 SCC 703 ○ Guidelines and
Protocols on Medico-legal care for survivors / victims of sexual violence (2015) ○ Rule 6 (2) of
Protection of Children from Sexual Offences Rules 2020

● Exceptions: ○ Reg. 7.14 – court order, serious and identified risk to specific person and / or
community; and notifiable diseases ○ Section 19 r/w 21 of Protection of Children from Sexual
Offences Act 2012 (Mandatory reporting); Section 357C of the Code of Criminal Procedure, 1973

● Specific legislations outlining the scope and limitations of the right and associated duties – Mental
Healthcare Act and HIV Aids Act.

IMC Regulations 2002

2.2 Patience, Delicacy and Secrecy :

Patience and delicacy should characterize the physician. Confidences concerning individual or
domestic life entrusted by patients to a physician and defects in the disposition or character of
patients observed during medical attendance should never be revealed unless their revelation is
required by the laws of the State. Sometimes, however, a physician must determine whether his
duty to society requires him to employ knowledge, obtained through confidence as a physician, to
protect a healthy person against a communicable disease to which he is about to be exposed. In
such instance, the physician should act as he would wish another to act toward one of his own family
in like circumstances.

7.14 The registered medical practitioner shall not disclose the secrets of a patient that have been
learnt in the exercise of his / her profession except – i) in a court of law under orders of the Presiding
Judge; ii) in circumstances where there is a serious and identified risk to a specific person and / or
community; and iii) notifiable diseases. In case of communicable / notifiable diseases, concerned
public health authorities should be informed immediately.

7.17 A registered medical practitioner shall not publish photographs or case reports of his / her
patients without their permission, in any medical or other journal in a manner by which their identity
could be made out. If the identity is not to be disclosed, the consent is not needed K.S.

Puttaswamy v. Union of India, (2017) 10 SCC 1

312. A distinction has been made in contemporary literature between anonymity on one hand and
privacy on the other. [See in this connection, Jeffrey M. Skopek, “Reasonable Expectations of
Anonymity”, Virginia Law Review (2015), Vol. 101, at pp. 691-762.] Both anonymity and privacy
prevent others from gaining access to pieces of personal information yet they do so in opposite
ways. Privacy involves hiding information whereas anonymity involves hiding what makes it
personal. An unauthorised parting of the medical records of an individual which have been furnished
to a hospital will amount to an invasion of privacy. On the other hand, the State may assert a
legitimate interest in analysing data borne from hospital records to understand and deal with a
public health epidemic such as malaria or dengue to obviate a serious impact on the population. If
the State preserves the anonymity of the individual it could legitimately assert a valid State interest
in the preservation of public health to design appropriate policy interventions on the basis of the
data available to it.
 313. Privacy has been held to be an intrinsic element of the right to life and personal liberty under
Article 21 and as a constitutional value which is embodied in the fundamental freedoms embedded
in Part III of the Constitution. Like the right to life and liberty, privacy is not absolute. The limitations
which operate on the right to life and personal liberty would operate on the right to privacy. Any
curtailment or deprivation of that right would have to take place under a regime of law. The
procedure established by law must be fair, just and reasonable. The law which provides for the
curtailment of the right must also be subject to constitutional safeguards

Mr. X v. Hospital Z (1998) 8 SCC 296 7.

Duty to maintain confidentiality has its origin in the Hippocratic oath, which is an ethical code
attributed to the ancient Greek physician Hippocrates, adopted as a guide to conduct by the medical
profession throughout the ages and still used in the graduation ceremonies of many medical schools
and colleges. […]

8. The Hippocratic oath consists of two parts. The first, or covenant, is the solemn agreement
concerning the relationship of apprentice to teacher and the obligations enjoined on the pupil. The
second part constitutes the ethical code.

9. It is on the basis of the above that the International Code of Medical Ethics has also laid down as
under: “A physician shall preserve absolute confidentiality on all he knows about his patient even
after his patient has died.”

10. Here, in this country, there is the Indian Medical Council Act, 1956 which controls the medical
education and regulates the professional conduct.

12. It is true that in the doctor-patient relationship, the most important aspect is the doctor's duty
of maintaining secrecy. A doctor cannot disclose to a person any information regarding his patient
which he has gathered in the course of treatment nor can the doctor disclose to anyone else the
mode of treatment or the advice given by him to the patient.

14. It is the basic principle of jurisprudence that every right has a correlative duty and every duty
has a correlative right. But the rule is not absolute. It is subject to certain exceptions in the sense
that a person may have a right but there may not be a correlative duty. The instant case, as we shall
presently see, falls within the exceptions.

15. “Right” is an interest recognised and protected by moral or legal rules. It is an interest the
violation of which would be a legal wrong. Respect for such interest would be a legal duty. That is
how Salmond has defined “right”. In order, therefore, that an interest becomes the subject of a legal
right, it has to have not merely legal protection but also legal recognition. The elements of a “legal
right” are that the “right” is vested in a person and is available against a person who is under a
corresponding obligation and duty to respect that right and has to act or forbear from acting in a
manner so as to prevent the violation of the right. If, therefore, there is a legal right vested in a
person, the latter can seek its protection against a person who is bound by a corresponding duty not
to violate that right.

16. The Hippocratic oath as such is not enforceable in a court of law as it has no statutory force.
Medical information about a person is protected by the Code of Professional Conduct made by the
Medical Council of India under Section 33(m) read with Section 20-A of the Act. The relevant
provisions of the Code of Medical Ethics have already been reproduced above which contain an
exception to the general rule of confidentiality, inasmuch as it provides that the information may be
disclosed in a court of law under the orders of the Presiding Judge. This is also the law in England
where it is provided that the exceptions to this rule permit disclosure with the consent, or in the best
interests, of the patient, in compliance with a court order or other legally enforceable duty and, in
very limited circumstances, where the public interest so requires. Circumstances in which the public
interest would override the duty of confidentiality could, for example, be the investigation and
prosecution of serious crime or where there is an immediate or future (but not a past and remote)
health risk to others. 26. 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

27. 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 one person's “right to be let alone” with another person's right to be
informed.

28. Disclosure of even true private facts has the tendency to disturb a person's tranquillity. It may
generate many complexes in him and may even lead to psychological problems. He may, thereafter,
have a disturbed life all through. In the face of these potentialities, and as already held by this Court
in its various decisions referred to above, the right of privacy is an essential component of the right
to life envisaged by Article 21. The right, however, is not absolute and may be lawfully restricted for
the prevention of crime, disorder or protection of health or morals or protection of rights and
freedom of others.

44. Ms ‘Y’, with whom the marriage of the appellant was settled, was saved in time by the disclosure
of the vital information that the appellant was HIV(+). The disease which is communicable would
have been positively communicated to her immediately on the consummation of marriage. As a
human being, Ms ‘Y’ must also enjoy, as she obviously is entitled to, all the Human Rights available
to any other human being. This is apart from, and in addition to, the Fundamental Right available to
her under Article 21, which, as we have seen, guarantees “right to life” to every citizen of this
country. This right would positively include the right to be told that a person, with whom she was
proposed to be married, was the victim of a deadly disease, which was sexually communicable. Since
“right to life” includes right to lead a healthy life so as to enjoy all the faculties of the human body in
their prime condition, the respondents, by their disclosure that the appellant was HIV(+), cannot be
said to have, in any way, either violated the rule of confidentiality or the right of privacy. Moreover,
where there is a clash of two Fundamental Rights, as in the instant case, namely, the appellant's
right to privacy as part of right to life and Ms ‘Y’s right to lead a healthy life which is her
Fundamental Right under Article 21, the right which would advance the public morality or public
interest, would alone be enforced through the process of court, for the reason that moral
considerations cannot be kept at bay and the Judges are not expected to sit as mute structures of
clay in the hall known as the courtroom, but have to be sensitive, “in the sense that they must keep
their fingers firmly upon the pulse of the accepted morality of the day”.

The HIV & Aids (Prevention and Control Act), 2017

settles the legal position on the disclosure of HIV status of a person to their partner / spouse Section
8: Disclosure of HIV status (1) Notwithstanding anything contained in any other law for the time
being in force,—

(i) no person shall be compelled to disclose his HIV status except by an order of the court that the
disclosure of such information is necessary in the interest of justice for the determination of issues in
the matter before it;

(ii) no person shall disclose or be compelled to disclose the HIV status or any other private
information of other person imparted in confidence or in a relationship of a fiduciary nature, except
with the informed consent of that other person or a representative of such another person obtained
in the manner as specified in section 5, as the case may be, and the fact of such consent has been
recorded in writing by the person making such disclosure: Provided that, in case of a relationship of a
fiduciary nature, informed consent shall be recorded in writing.

(2) The informed consent for disclosure of HIV-related information under clause (ii) of sub-section (1)
is not required where the disclosure is made—

(a) by a healthcare provider to another healthcare provider who is involved in the care, treatment
or counselling of such person, when such disclosure is necessary to provide care or treatment to that
person;

(b) by an order of a court that the disclosure of such information is necessary in the interest of
justice for the determination of issues and in the matter before it;

(c) in suits or legal proceedings between persons, where the disclosure of such information is
necessary in filing suits or legal proceedings or for instructing their counsel;

(d) as required under the provisions of section 9;

(e) if it relates to statistical or other information of a person that could not reasonably be expected
to lead to the identification of that person; and

(f) to the officers of the Central Government or the State Government or State AIDS Control Society
of the concerned State Government, as the case may be, for the purposes of monitoring, evaluation
or supervision.

Section 9: Disclosure of HIV – positive status to partner of HIV positive person

1) No healthcare provider, except a physician or a counsellor, shall disclose the HIV-positive status of
a person to his or her partner.

(2) A healthcare provider, who is a physician or counsellor, may disclose the HIV-positive status of a
person under his direct care to his or her partner, if such healthcare provider—
(a) reasonably believes that the partner is at the significant risk of transmission of HIV from such
person; and

(b) such HIV-positive person has been counselled to inform such partner; and

(c) is satisfied that the HIV-positive person will not inform such partner; and

(d) has informed the HIV-positive person of the intention to disclose the HIV positive status to such
partner:

Provided that disclosure under this sub-section to the partner shall be made in person after
counselling:

Provided further that such healthcare provider shall have no obligation to identify or locate the
partner of an HIV-positive person:

Provided also that such healthcare provider shall not inform the partner of a woman where there is
a reasonable apprehension that such information may result in violence, abandonment or actions
which may have a severe negative effect on the physical or mental health or safety of such woman,
her children, her relatives or someone who is close to her.

(3) The healthcare provider under sub-section (1) shall not be liable for any criminal or civil action
for any disclosure or non-disclosure of confidential HIV-related information made to a partner under
this section

Mental Healthcare Act, 2017

23. Right to confidentiality:

(1) A person with mental illness shall have the right to confidentiality in respect of his mental health,
mental healthcare, treatment and physical healthcare.

(2) All health professionals providing care or treatment to a person with mental illness shall have a
duty to keep all such information confidential which has been obtained during care or treatment
with the following exceptions, namely:––

(a) release of information to the nominated representative to enable him to fulfil his duties under
this Act;

(b) release of information to other mental health professionals and other health professionals to
enable them to provide care and treatment to the person with mental illness;

(c) release of information if it is necessary to protect any other person from harm or violence;

(d) only such information that is necessary to protect against the harm identified shall be released;
(e) release only such information as is necessary to prevent threat to life;

(f) release of information upon an order by concerned Board or the Central Authority or High Court
or Supreme Court or any other statutory authority competent to do so; and

(g) release of information in the interests of public safety and security

24. Restriction on release of information in respect of mental illness

(1) No photograph or any other information relating to a person with mental illness undergoing
treatment at a mental health establishment shall be released to the media without the consent of
the person with mental illness.

(2) The right to confidentiality of person with mental illness shall also apply to all information stored
in electronic or digital format in real or virtual space.

Surupsingh Hrya Naik v. State of Maharashtra (2007, Bom HC)

8.(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-
(j) information which relates to personal information the disclosure of which has no relationship to
any public activity or interest, or which would cause unwarranted invasion of the privacy of the
individual unless the Central Public Information Officer or the State Public Information Officer or the
appellate authority, as the case may be, is satisfied that the larger public interest justifies the
disclosure of such information.

PROVIDED that the information which cannot be denied to the Parliament or a State Legislature
shall not be denied to any person.

10. The question that we are really called upon to answer is the right of an individual, to keep certain
matters confidential on the one hand and the right of the public to be informed on the other,
considering the provisions of the Right to Information Act, 2005.

13. The right to privacy now forms a part of right to life. It would, therefore, be apparent on a
reading of Regulation 2.2 and 7.

14 framed under the Medical Council of India Act that information about a patient in respect of his
ailment normally cannot be disclosed because of the Regulations, which is subordinate legislation
except where the Regulation provides for. The Right to Information Act, is an enactment by
Parliament and the provisions contained in the enactment must, therefore, prevail over an exercise
in subordinate legislation, if there be a conflict between the two.

The exception from disclosure of information as contained in Section 8 has some important aspects.
Section 8(1)(j) provides that personal information the disclosure of which has no relationship to any
public activity or interest, or which would cause unwarranted invasion of the privacy of the
individual shall not be disclosed unless the Central Public Information Officer or the State Public
Information Officer or the Appellate Authority is satisfied, that the larger public interest justifies the
disclosure of such information. In other words, if the information be personal or would amount to
invasion of privacy of the individual, what the concerned Public Information Officer has to satisfy is
whether the larger public interest justifies the disclosure.

In our opinion, the Regulations framed under the Indian Medical Council Act, will have to be read
with Section 8(1)(J) of the Right to Information Act. So read it is within the competence of the
concerned Public Information Officer to disclose the information in larger public interest or where
Parliament or State Legislature could not be denied the information.
17. 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 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.

Right to Privacy of the Dead?

Mahendra Kumar Jain v. State of West Bengal, AIR 2022 Cal 352 (context of disclosure of whatsapp
chats)

10. Unlike the other clauses under section 8(1), clause (j) covers the space of personal information
and the right to privacy. In essence, the clamp on disclosure of information, unlike the object of
transparency of the 2005 Act, travels from national security issues, parliamentary privilege, sanctity
of court orders, international relations and settles in the corner of the private space of an individual.

11. Section 8(1)(j) contemplates personal information which is wholly unnecessary to any public
interest. The exception to non-disclosure of such information is where the CPIO/SPIO (Central Public
Information Officer/State Public Information Officer) is satisfied that unlocking the disclosure of such
information is necessary for the larger public interest. The satisfaction requirement brings with it a
duty to engage with the relevant facts and come to a specific view or opinion upon due application
of mind and an assessment of the circumstances attending the disclosure. There must hence be a
definite opinion expressed on the link between the personal information sought for and the larger
public interest justifying the departure from protection of privacy of such information.

12. Section 11 of the RTI Act which relates to third-party information cannot come to the rescue of
the respondents. This section contemplates a situation where CPIO/SPIO intends to disclose any
information on the request made under this Act and which has been supplied by a third party and
has also been treated as confidential by that third party. In such cases, the CPIO/SPIO shall give a
written notice to such third party of the request and the fact that the Officer intends to disclose the
information. The Officer must also invite the third party to make a submission in writing or orally as
to whether the information should be disclosed. The procedure to be followed in section 11 would
have to cover every third party whose information was confined to the private sphere. D. Breach of
confidence

21. Breach of confidence traditionally fastens on the conscience of one to enforce equitable duties
which arises out of his/her relationship with the other. Simply put, confidential information which
comes to the knowledge of a person in circumstances where he is put on notice or is held to have
agreed that the information is confidential, carries with it the equitable principle that the person
receiving the information should be precluded from disclosing the information to others. [….]

E.Respect for the dead

22. There is another factor which simply cannot be ignored in the present case. […] The obligation
assumes a higher moral ground since the deceased cannot defend oneself against any such
unwarranted intrusion into her private space. After all, the right to privacy draws within its fold, the
right to be left alone (or with others) and the right to treat one's intimacies, relationships, beliefs and
associations as information which is to remain within the private domain. It is also about the belief
that a person should be allowed to carry his/her secrets to the grave. I. Conclusions of the Court 30.

a) The designated Information Officer has a duty and an obligation to apply his mind on the nature of
the information which is to be furnished to an applicant who has sought for such information. This
obligation calls for an active determination taking into account Section 8(1) (a)-(j) and whether an
overwhelming pressure of public interest justifies the disclosure of the information at hand.

b) The determination must also involve an assessment of whether the personal information has any
nexus with a public activity or furnishing of such information would cause an unwarranted invasion
of the privacy of the individual concerned

(f) The determination must be nuanced and sensitive where one of the parties to the conversation is
no longer alive. In such cases, the consent of the other (living) party to the disclosure of the
information may not be relevant for the purposes of section 8(1)(j) of the Act

g) The significance of section 8(1)(j) which upholds the right to privacy and ultimately the reputation
and dignity of an individual under Article 21 of the Constitution goes against the tide of a free flow of
information and remains steadfast in holding on to the private space of an individual. The
significance of this provision must not be forgotten or diluted under any circumstances

Right to second opinion

Every patient has the right to seek second opinion from an appropriate clinician of patients’ /
caregivers’ choice. The hospital management has a duty to respect the patient’s right to second
opinion, and should provide to the patients caregivers all necessary records and information
required for seeking such opinion without any extra cost or delay. The hospital management has a
duty to ensure that any decision to seek second opinion by the patient / caregivers must not
adversely influence the quality of care being provided by the treating hospital as long as the patient
is under care of that hospital. Any kind discriminatory practice adopted by the hospital or the service
providers will be deemed as Human Rights’ violation.

Right to transparency in rates

Every patient and their caregivers have a right to information on the rates to be charged by the
hospital for each type of service provided and facilities available on a prominent display board and a
brochure. They have a right to receive an itemized detailed bill at the time of payment. It would be
the duty of the Hospital / Clinical Establishment to display key rates at a conspicuous place in local as
well as English language, and to make available the detailed schedule of rates in a booklet form to all
patients / caregivers.

Every patient has a right to obtain essential medicines as per India Pharmacopoeia, devices and
implants at rates fixed by the National Pharmaceutical Pricing Authority (NPPA) and other relevant
authorities. Every patient has a right to receive health care services within the range of rates for
procedures and services prescribed by Central and State Governments from time to time, wherever
relevant. However, no patient can be denied choice in terms of medicines, devices and standard
treatment guidelines based on the affordability of the patients’ right to choice. Every hospital and
clinical establishment has a duty to ensure that essential medicines under NLEM as per Government
of India and World Health Organisation, devices, implants and services are provided to patients at
rates that are not higher than the prescribed rates or the maximum retail price marked on the
packaging.

Right to nondiscrimination

Every patient has the right to receive treatment without any discrimination based on his or her
illnesses or conditions, including HIV status or other health condition, religion, caste, ethnicity,
gender, age, sexual orientation, linguistic or geographical /social origins. The hospital management
has a duty to ensure that no form of discriminatory behaviour or treatment takes place with any
person under the hospital’s care. The hospital management must regularly orient and instruct all its
doctors and staff regarding the same.

Right to safety and quality care according to standards

Patients have a right to safety and security in the hospital premises. They have a right to be provided
with care in an environment having requisite cleanliness, infection control measures, safe drinking
water as per BIS/FSSAI Standards and sanitation facilities. The hospital management has a duty to
ensure safety of all patients in its premises including clean premises and provision for infection
control. Patients have a right to receive quality health care according to currently accepted
standards, norms and standard guidelines as per National Accreditation Board for Hospitals (NABH)
or similar.

They have a right to be attended to, treated and cared for with due skill, and in a professional
manner in complete consonance with the principles of medical ethics. Patients and caretakers have
a right to seek redressal in case of perceived medical negligence or damaged caused due to
deliberate deficiency in service delivery. The hospital management and treating doctors have a duty
to provide quality health care in accordance with current standards of care and standard treatment
guidelines and to avoid medical negligence or deficiency in service delivery system in any form.

Right to choose alternative treatment options if available

Patients and their caregivers have a right to choose between alternative treatment / management
options, if these are available, after considering all aspects of the situation. This includes the option
of the patient refusing care after considering all available options, with responsibility for
consequences being borne by the patient and his/her caregivers. In case a patient leaves a
healthcare facility against medical advice on his / her own responsibility, then notwithstanding the
impact that this may have on the patient’s further treatment and condition, this decision itself
should not affect the observance of various rights mentioned in this charter. The hospital
management has a duty to provide information about such options to the patient as well as to
respect the informed choice of the patient and caregivers in a proper recorded manner with due
acknowledgement from the patient or the caregivers on the communication and the mode.

Right to choose source for obtaining medicines and tests

When any medicine is prescribed by a doctor or a hospital, the patients and their caregivers have
the right to choose any registered pharmacy of their choice to purchase them. Similarly when a
particular investigation is advised by a doctor or a hospital, the patient and his caregiver have a right
to obtain this investigation from any registered diagnostic centre/laboratory having qualified
personnel and accredited by National Accreditation Board for Laboratories (NABL).

It is the duty of every treating physician / hospital management to inform the patient and his
caregivers that they are free to access prescribed medicines / investigations from the pharmacy /
diagnostic centre of their choice. The decision by the patient / caregiver to access pharmacy /
diagnostic centre of their choice must not in any ways adversely influence the care being provided
by the treating physician or hospital.

Right to proper referral and transfer, which is free from perverse commercial influence

A patient has the right to continuity of care, and the right to be duly registered at the first healthcare
facility where treatment has been sought, as well as at any subsequent facilities where care is
sought. When being transferred from one healthcare facility to another, the patient / caregiver must
receive a complete explanation of the justification for the transfer, the alternative options for a
transfer and it must be confirmed that the transfer is acceptable to the receiving facility. The patient
and caregivers have the right to be informed by the hospital about any continuing healthcare
requirements following discharge from the hospital.

The hospital management has a duty to ensure proper referral and transfer of patients regarding
such a shift in care. In regard to all referrals of patients, including referrals to other hospitals,
specialists, laboratories or imaging services, the decision regarding facility to which referral is made
must be guided entirely by the best interest of the patient. The referral process must not be
influenced by any commercial consideration such as kickbacks, commissions, incentives, or other
perverse business practices

Right to protection for patients involved in clinical trials

Every person / patient who is approached to participate in a clinical trial has a right to due protection
in this context. All clinical trials must be conducted in compliance with the protocols and Good
Clinical Practice Guidelines issued by Central Drugs Standard Control Organisation, Directorate
General of Health Services, Govt. of India as well as all applicable statutory provisions of Amended
Drugs and Cosmetics Act, 1940 and Rules, 1945, including observance of the following provisions
related to patients rights:

a) Participation of patients in clinical trials must always be based on informed consent, given after
provision of all relevant information. The patient must be given a copy of the signed informed
consent form, which provides him / her with a record containing basic information about the trial
and also becomes documentary evidence to prove their participation in the trial.

b) A participant’s right to agree or decline consent to take part in a clinical trial must be respected
and her/his refusal should not affect routine care.

c) The patient should also be informed in writing about the name of the drug / intervention that is
undergoing trial along with dates, dose and duration of administration.

d) At all times, the privacy of a trial participant must be maintained and any information gathered
from the participant must be kept strictly confidential.

Right to protection for patients involved in clinical trials

e) Trial participants who suffer any adverse impact during their participation in a trial are entitled to
free medical management of adverse events, irrespective of relatedness to the clinical trial, which
should be given for as long as required or till such time as it is established that the injury is not
related to the clinical trial. In addition, financial or other assistance must be given to compensate
them for any impairment or disability. In case of death, their dependents have the right to
compensation.

f) Ancillary care may be provided to clinical trial participants for nonstudy/trial related illnesses
arising during the period of the trial. This could be in the form of medical care or reference to
facilities, as may be appropriate.

g) Institutional mechanisms must be established to allow for insurance coverage of trial related or
unrelated illnesses (ancillary care) and award of compensation wherever deemed necessary by the
concerned Ethics Committee.

h) After the trial, participants should be assured of access to the best treatment methods that may
have been proven by the study. Any doctor or hospital who is involved in a clinical trial has a duty to
ensure that all these guidelines are followed in case of any persons / patients involved in such a trial.

Right to protection of participants involved in biomedical and health research

Every patient who is taking part in biomedical research shall be referred to as research participant
and every research participant has a right to due protection in this context. Any research involving
such participants should follow the National Ethical Guidelines for Biomedical and Health Research
Involving Human Participants, 2017 laid down by Indian council for Medical Research and should be
carried out with prior approval of the Ethics Committee.

● Documented informed consent of the research participants should be taken.

● Additional safeguards should be taken in research involving vulnerable population.

● Right to dignity, right to privacy and confidentiality of individuals and communities should be
protected.
 ● Research participants who suffer any direct physical, psychological, social, legal or economic harm
as a result of their participation are entitled, after due assessment, to financial or other assistance to
compensate them equitably for any temporary or permanent impairment or disability.

● The benefits accruing from research should be made accessible to individuals, communities and
populations whenever relevant. Any doctor or hospital who is involved in biomedical and health
research involving patients has a duty to ensure that all these guidelines are followed in case of any
persons / patients involved in such research.

Right to take discharge of patient, or body of deceased from the hospital

A patient has the right to take discharge and cannot be detained in a hospital, on procedural
grounds such as dispute in payment of hospital charges. Similarly, caretakers have the right to the
dead body of a patient who had been treated in a hospital and the dead body cannot be detailed on
procedural grounds, including nonpayment/dispute regarding payment of hospital charges against
wishes of the caretakers.

The hospital management has a duty to observe these rights and not to indulge in wrongful
confinement of any patient, or dead body of patient, treated in the hospital under any
circumstances.

Right to patient education

Patients have the right to receive education about major facts relevant to his/her condition and
healthy living practices, their rights and responsibilities, officially supported health insurance
schemes relevant to the patient, relevant entitlements in case of charitable hospitals, and how to
seek redressal of grievances in the language the patients understand or seek the education.

The hospital management and treating physician have a duty to provide such education to each
patient according to standard procedure in the language the patients understand and communicate
in a simple and easy to understand manner

Right to be heard and seek redressal

Every patient and their caregivers have the right to give feedback, make comments, or lodge
complaints about the health care they are receiving or had received from a doctor or hospital. This
includes the right to be given information and advice on how to give feedback, make comments, or
make a complaint in a simple and user friendly manner. Patients and caregivers have the right to
seek redressal in case they are aggrieved, on account of infringement of any of the above mentioned
rights in this charter. This may be done by lodging a complaint with an official designated for this
purpose by the hospital / healthcare provider and further with an official mechanism constituted by
the government such as Patients’ rights Tribunal Forum or Clinical establishments regulatory
authority as the case may be.

All complaints must be registered by providing a registration number and there should be a robust
tracking and tracing mechanism to ascertain the status of the complaint resolution. The patient and
caregivers have the right to a fair and prompt redressal of their grievances. Further, they have the
right to receive in writing the outcome of the complaint within 15 days from the date of the receipt
of the complaint. Every hospital and clinical establishment has the duty to set up an internal
redressal mechanism as well as to fully comply and cooperate with official redressal mechanisms
including making available all relevant information and taking action in full accordance with orders
of the redressal body as per the Patient’s Right Charter or as per the applicable existing laws