Health Privacy in India: A Legal Mapping
14 Pages Posted: 21 Jun 2014
Date Written: June 23, 2014
Abstract
Laws are dynamic, in that they reflect the societal attitude at a particular period and are enacted to control the behaviour and practice of the society. Recent examples include the enactment of The Persons with Disabilities Act to empower, promote equality and participation of persons with disabilities, The Pre-Natal Diagnostic Techniques Act to curb female feticide and The Medical Council of India, Code of Ethics Regulations that set the professional standards for medical practice. Invariably, the general legislations governing healthcare are not robust enough as they fail to adequately include provisions of privacy and confidentiality. A uniform statute specifically protecting the privacy of health information in India does not exist. Broadly speaking, the existing legal framework is weak and complex. Recurring issues include lack of safeguards, implementation, redressal mechanisms and judicial inactivity. However, the last two decades have seen a phenomenal rise in health-related public litigation. Two notable cases reiterating the right to medical privacy include: Mr. "X" v. Hospital "Z" and Ms. X vs. Mr. Z & Anr. Currently in India, the Mother and Child Tracking System, an e-governance initiative to collate information of all pregnant women and infants to ensure delivery of maternal and child health services from conception till 42 days after delivery for pregnant women and up to five years for children as well as the UID objective of health and health related development schemes as a “killer application” have raised questions related to privacy, disclosure, confidentiality, and ethical use of information, informed consent, data sharing and security of information. In order to understand the legal and policy ecosystem of health privacy in India, mappings were undertaken of relevant legislation, legal policy and case law, analysis of which included collection, retention, security, access, use and disclosure and remedies and offences.
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