TMI Blog1998 (9) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Diploma in Opthamalogy which completed in April, 1993, In August, 1993 he resumed his duties in the Nagaland State Health Service as Assistant Surgeon Grade-I. One Itokhu Yepthomi who was ailing from a disease which was provisionally diagnosed as Aortic Anuerisrn was advised to go to the 'Z' Hospital at Madras and the appellant was directed by the Government of Nagaland to accompany the said patient to Madras for treatment. For the treatment of the above disease, Itokhu Yepthomi was posted for surgery on May 31, 1995 which, however, was cancelled due to shortage of blood. On June 1, 1995 the appellant and one Yehozhe who was the driver of Itokhu Yepthomi were asked to donate blood for the latter. Their blood samples Were taken and the result showed that the appellant's blood group was A(+ve). On the next date, namely, on June 2, 1995, Itokhu Yepthomi was operated for Aortic Anuerism and remained in the Hospital till 10th June, 1995 when he was discharged. In August, 1995 the appellant proposed marriage to one Ms, 'Y' which was accepted and the marriage was proposed to be held on December 12, 1995. But the marriage was called off on the ground of blo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s if required, to look upon his offspring in the same footing as my own brothers and to teach them this art if they shall wish to learn it without fee or stipulation and that by precept, lecture, and every other mode of instruction I will impart a knowledge of the art to my own sons and those of my teachers and to disciples bound by a stipulation and oath according to the law of medicine but to none others. 1 will follow that system of regimen which, according to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous. I will give no deadly medicine to any one if asked nor suggest any such counsel, and in like manner I will not give to a woman a pessary to produce abortion. With purity and with holiness I will pass my life and practice my art, I will not cut persons laboring under the stone but will leave this to be done by men who are practitioners of this work, Into whatever houses I enter, I will go into them for the benefit of the sick and will abstain from every voluntary act of mischief and corruption, and further, from the seduction of females or males, of freeman and slaves, whatever in connection with rny ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Do not disclose the secrets of a patient that have been learnt in the exercise of your profession. Those may be disclosed only in a Court of Law under orders of the presiding judge, 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. It is contended that the doctor's duty to maintain secrecy has a corelative right vested in the patient that whatever has come to the knowledge of the Doctor would not be divulged and it is this right which is being enforced through these proceedings. It is the basic principle of Jurisprudence that every Right has a co- relative Duty and every Duty has a co-relative 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 co- relative Duty. The instant case, as we shall presently see, falls within the exceptions. 'RIGHT is an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . All people receiving such information much consider themselves to be under the same obligations of confidentiality as the doctor principally responsible for the patient's care. Occasionally the doctor may wish to disclose a diagnosis to a third party other than a health-care professional. The Council think that the only grounds for this are when there is a serious and identifiable, risk to a specific person. who, if not so informed would be exposed to infection..,.. A doctor may consider it a duty to ensure that any sexual partner is informed regardless of the patient's own wishes. (Emphasis supplied). Thus, the Code of Medical Ethics also carves out an exception to the rule of confidentiality and permits the disclosure. in the circumstances enumerated above under which public interest, would override. the duty of confidentiality, particularly where there, is an immediate or future health risk to others, The argument .of the learned counsel for the appellant, therefore, that the respondents were under a duty to, maintain confidentiality on account, of the Code of Medical Ethics. formulated by the Indian Medical Council cannot be accepted as the proposed rnarri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch-oriented judgment, it Was laid down, inter alia, as under : The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a right to be let alone: A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent - whether truthful of otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however; be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy, In an American decision, Jane Roe v. Henry Wade, 410 US 113, the Supreme Court of United States said that : Although the Constitution of the U.S.A. does not explicitly men-tion any right of privacy, the United States Supreme Court recognizes that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution, and that the roots of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection of health or morals or protection of rights and freedom of others. 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. 'Y' 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. We may now examine the right based on confidentiality in the context of marriage. Marriage is the sacred union, legally permissible, of two healthy bodies of opposite sexes. It has to be mental, psychological and physical Union. When two souls thus unite, a new soul comes into existence. That is how, the life goes on and on on this planet. Mental and physical health is-of prime importance in a marriage, as one of the objects of the marriage is the procreation of equally healthy children. That is why, in every system of matrimonial law, it has been provided that if a person was found to be suffering from any, including venereal disease, in a communicable form, it will be open to the other partner i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be accepted in the absolute terms in Which it is being contended. Having regard to the age and the biological needs, a person may have a right to marry but this right is not without a duty, If that person is suffering from any communicable Venereal disease or is impotent so that marriage would be a complete failure or that his wife would seek divorce from him on that ground, that person is under a moral, as also legal duty, to inform the woman with whom the marriage is proposed that he was not physically healthy and that he was suffering from a disease which was likely to be communicated to her. In this situation, the right to marry and duty to inform about his ailment are vested in the same person. It is a right in respect of which a corresponding duty cannot be claimed as against some other person. Such a right, for these reasons also, would be an exception to the general rule that every RIGHT has a corelative Duty . Moreover, so long as the person is not Cured of the communicable venereal disease or impotency, the RIGHT to marry cannot be enforced through a court of law and shall be treated to be a SUSPENDED RIGHT . There is yet another aspect of the matter. Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghts 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 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 Court Room, but have to be sensitive, in the sense that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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