The Universal Declaration of Human Rights (1948) recognizes dignity, privacy, equality and inalienability of every human. It is on this concept of fundamental human right that the notion of patients' right is formed. This is generally referred to as Rights to Confidentiality.1 Right of Confidentiality means that personal information shared with an attorney, physician, therapist, or other individuals cannot be revealed to third parties without the express consent of the client. Although right to confidentiality is closely related to right to privacy to personal information and communication guaranteed under Section 37 of the constitution as they are founded on similar principles, the root of the two concepts is different; whereas confidentiality is an ethical duty, privacy is a right rooted in the common law.2
Medical confidentiality3 connotes that a medical personnel maintain confidentiality of their patients' medical information and keep their records safe and private from a third party. It is a duty that medical practitioners are obligated to perform to their patients, to give patients the chance to feel free and disclose every medical information to the doctor, not withholding anything and with the full knowledge that the doctor will keep it confidential.
The peculiarity of the COVID 19 pandemic has given rise to circumstances which seems to test this age long principle in the medical profession. There has been report of patients complaining of wrongful diagnosis4, reports of patients infected with the virus escaping from isolation centers5, exposed and likely infected individuals failing to self-isolate or to give accurate record to the authorities in line with the regulations amongst others. These scenarios thrusted government and medical personal to publicly publish names of infected persons who escaped from designated isolation centers, defend their records and testing procedure in the public glare which sometimes requires disclosure of personal medical records of the patients that made allegations against the authorities and in some other circumstances private information of likely infected person are disclosed to protect the public. This article focuses on a patient's confidentiality and right to medical laboratory reports vis-à-vis the challenges posed by the pandemic.
The Duty of Confidentiality in the Medical Profession
The general entrenchment of a right to privacy (and by extension a medical practitioner's duty of confidentiality) is based on the constitutional rights of privacy and personal liberty of a citizen spelt out in section 376 of the 1999 Constitution (2010 as amended). The duty of confidentiality to a patient cannot be overemphasized.7 Medical practitioners are sworn to confidentiality of their patients. This can be gleaned from their oath as contained in the Medical and Dental Council of Nigeria (MDCN) Code of Medical Ethics8, where practitioners pledge to practice the profession with conscience and dignity, with the health of their patients being the first concern and it goes further to state that respect will be given to patients' secrets confided in the practitioner even after the patients' demise.9
There are several laws protecting the sanctity of medical records in Nigeria and the need for doctors to maintain upmost confidentiality in respect of information that comes to their knowledge while treating a patient10. The Nigerian Medical and Dental Association (NMA) has a 'Rule of Professional Conduct for Medical and Dental Practitioners, Code on Medical Ethics in Nigeria' (NMA Guideline) 1995, that guides the general conduct of medical and dental practitioners.11 The Code of Conduct seeks to protect the sanctity of medical records collated as they contain a history of diagnosis and treatment of the patient. This information is crucial in prescribing a treatment plan for the patient at a given time. Rule 8, 9, 24 and 44 impose on the medical personal the duty of maintaining confidentiality even in cases of deadly and infectious diseases such as the Covid 19 pandemic12. Also, Section 26 of the National Health Act places the duty to ensure confidentiality of medical history on medical practitioners.
The recognized rights of the patient
There are varying rights accruing to patients under the laws regulating the medical profession. These includes right to confidentiality and right of the patient to be informed of his medical condition. Generally, only private matters merit confidentiality protection. A patient's medical records enjoys the protection guaranteed under section 37 of the 1999 constitution. The duty of medical confidentiality is not only imposed on the medical personnel but also extended to any individual who comes in possession of medical record of an individual at any point in time. In the case of Attorney-General v Guardian Newspapers13, the court held that a duty of confidence arises when such confidential information comes to the knowledge of a confidant who has knowledge that such information is to be treated as confidential14. This confidentiality is breached upon failure of the recipient to protect the leak of sensitive information.
Also, the patient has the right to be informed of his medical condition to enable him make informed decisions about his health. This right is absolute. It is not subject to the discretion of the medical doctor except in special circumstances recognized under the law like when disclosure would be detrimental to the condition of the patient and when the patient is a minor in which the next of kin of such a patient must be informed. Another exception recognized under the law is where non-disclosure would be in the interest of the public.
Public policy considerations and impact on the right of the patient
Nigeria has incorporated the Integrated Disease Surveillance and Response (IDSR) strategy as a vital component of its long-term plan to improve capacity for effective detection and timely response to priority communicable diseases.
The IDSR system classifies about 40 diseases15 or conditions of public health importance as reportable diseases. This means that medical professionals are by law required to disclose the patients who test positive to named diseases or conditions. A duty is incumbent upon health providers, knowing of or in attendance on a case or suspected case of any of the named conditions to report the occurrence of these diseases to designated health officials and departments without the need to obtain consent from affected individuals. This provision clearly by-passes the requirement of obtaining the patient's consent in writing or otherwise.
Utilitarian connotations come to play at the instance of protection of public health16. For the interest of the public, patients with certain illnesses may need to be isolated despite the lucid infringement of their rights to privacy and freedom of association or movement. In all such cases, the duty to protect public health is prioritized over a duty owed to the patient. In the 1980s, the emergence of HIV/AIDS private interests that warranted confidentiality included the fear of shame, ridicule, stigma, discrimination, and abandonment. Yet a failure to disclose puts others within the community at risk of contracting the disease.
Generally, as discussed above, a medical personnel or anyone who has the medical record of a patient in his possession is not allowed in law to disclose to a third party without the prior consent of the patient. There are however some circumstances under our laws when an individual may be obligated to disclose the medical information of a patient. The rule of confidentiality does not impose an absolute obligation and may be compromised at the instance of a superior interest. These include the interests of national security, public safety and economic well-being of the country17.
The Code of Medical Ethics in Nigeria stipulates instances where statutory notification18 of diseases is required. By virtue of practice, such breach is permitted in the case of an emergency regarding the patient's well-being and are classified as disclosures, for the protection of health professionals19, and for the prevention of a crime20.
Generally, information as to names and particulars of people infected with covid 19 were not made public. However, we have witnessed instances where government released particulars of some infected individuals to the public because they escaped from isolation facilities provided by government after testing positive to the virus. The government claimed to have done this in the interest of the public and to alert people who may come in contact with these individuals due to fear of community transmission of the virus. The steps taken by government in this regard appears to be in line with the identified exceptions when medical confidentiality could be breached.
A Patient's Right to Medical Records and impact of current pandemic
Section 23 of the National Health Act, 2014 states that every health care provider shall give a patient relevant information pertaining to his state of health and necessary treatment relating to their health status except in circumstances where there is substantial evidence that the disclosure would be contrary to the best interests of the patient; the range of diagnostic procedures and treatment options generally available to the patient; the benefits, risks, costs and consequences generally associated with each option; and the patient's right to refuse health services and explain the implications, risks or obligations of such refusal. The act further states that the health care provider concerned shall, where possible, inform the patient in a language that he/she understands and in a manner which takes into account the his/her level of literacy.
This is another right of the patient which is being affected by the pandemic. There were reports credited to the Nigeria Center for Disease Control which is responsible for testing people for Covid 19 that the agency does not give test result to individuals which samples were tested21. The agency posited that it is only obligated to transmit the results of test conducted to the States that submitted the samples to the NCDC laboratories. It would however appear that the contention is not whether the patient whose sample is tested for the virus is entitled to the test result or not, rather, the issue is who has the duty to communicate the result of the test to the patient. Since the States are responsible for sample collection, administratively, they have the obligation to communicate the result of the tests to the patients.
Remedies to Breach of Confidentiality
A breach of medical confidentiality can be remedied via a claim under a breach of contract or tort. The personnel who unlawfully breach his duty of confidentiality could either be liable for breaching contractual terms entered with the patient or for tort of medical negligence. For a claim to succeed, there must be an existing patient/physician relationship between the parties, the act of the physician is below the standard of care, there is an evident link between the physician's misconduct and the damages of the patient and the patient must show that he suffered actual or real damage; through a claim of invasion of privacy and even under the violation of statute by physician. 22
The need for medical confidentiality cannot be over-emphasized as every other universal right such as a right to life, freedom of speech, freedom of movement, etc, rests on the ability of patient to trust their handlers with their information. Right to medical confidentiality should be respected by every health care providers. However, public interest must be prioritized over private interests. In light of the recent pandemic, the preservation and protection of the public interest trumps the duty of confidentiality or non-disclosure owed to an individual.
* Partner, Punuka Attorneys and Solicitors, Nnamdi Oragwu (email@example.com)
** Associate, Punuka Attorneys and Solicitors, Sandra Ifejika (firstname.lastname@example.org)
*** Associate, Punuka Attorneys and Solicitors, Sharon Juwah (email@example.com)
1. W.H.O, 'Patients' Rights',(https://www.who.int/genomics/public/patientrights/en/), accessed on 30th April, 2020.
2. F. Law Team, 'Is there a Difference Between Confidentiality and Privacy?',(https://criminal.findlaw.com/criminal-rights/is-there-a-difference-between-confidentiality-and-privacy.html), accessed on 30th April, 2020.
3. This doctor-patient confidentiality principle is akin to that of priest-penitent relationship as stated by Browne Wilkinson V-C in Stephens v Avery
6. The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.
7. Medical doctors have a duty to keep their patients' confidences. This duty of confidentiality means that a doctor may not disclose any medical information irrespective of whether it was provided directly by the patient; or learned through an examination/test or through treatment; or learned indirectly through medical documentation or in any other manner. The purpose of a doctor's duty to maintain patient confidentiality is to allow the patient to feel free to disclose fully any information to the doctor with the knowledge that the doctor will keep it confidential.
8. This is a restatement of the Declaration of Geneva.
9. See also the cases of Saltman Engineering Co. Ltd. v Campbell Engineering Ltd., Coco v A.N. Clark (Engineers) Ltd. and Campbell v MGN Ltd
10. The Constitution, National Health Act, Code of Conduct for Medical Practitioners, Medical and Dental Practitioners Act amongst others
11. Kingsley Adegboye, 'CONFIDENTIALITY AND PRIVACY OF PATIENTS IN MEDICAL LAW', ( https://findlawyer.ng/legal-research/64/confidentiality-and-privacy-of-patients-in-medical-law/view-topic accessed on 4th may, 2020
12. See particularly Rule 24
13.  1 AC 109
14. Obiajulu Nnamuchi, 'Physicians' Handling of Patients' Health Information: Ethics and Law of Confidentiality', (https://lawexplores.com/physicians-handling-of-patients-health-information-ethics-and-law-of-confidentiality/) accessed on 4th may, 2020
15. Cerebrospinal Meningitis (CSM), Yellow fever, Cholera, Measles, Monkey pox, Acute Flaccid Paralysis (AFP), National Influenza Sentinel Surveillance, amongst others.
16. In times of emergency, such as an outbreak of infections, the need to contain the spread of the disease in question might warrant extraordinary measures which, in some cases, may adversely impact certain segments of the population. Isolation might be necessary for infected individuals as would be quarantine for people who, although not ill, have been exposed to infectious agents.
17. See generally Section 26(2) National Health Act, Rule 44 of Code of Conduct for Medical Practitioners
18. An example would be the Integrated Disease Surveillance and Response (IDSR) strategy in Nigeria.
19. This would be the case where the nature of the patient's condition requires that those treating him adopt higher than routine precautionary measures to lessen their exposure to the patient's illness. Examples are highly contagious illnesses such as Ebola, Influenza and even the novel COVID-19. This would also apply when the patient in question has an ailment such as HIV or Hepatitis B or C.
20. In the case of Tarasoff v The Regents of the University of California, a decision handed down by the Supreme Court of California in 1976.89 Prosenjit Poddara, a graduate student from India, confided in his psychotherapist his intention to murder Tatiana Tarasoff, a woman who had rejected his advances. Concerned about the mental stability of Prosenjit, the psychotherapist filed a report to the police, requesting that the patient be committed for observation in a mental hospital. This was not held to be a breach of confidentiality. See also the case of W v. Edgell (1990) 1 ALL ER 835
22. V. Blake, 'When Doctors Pick up the Pen: Patient-Doctor Confidentiality Breaches in Publishing', https://journalofethics.ama-assn.org/article/when-doctors-pick-pen-patient-doctor-confidentiality-breaches-publishing/2011-07, accessed on 2nd May, 2020.
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