What is Privileged Communication  ?

Doctor must not disclose the secret information of his patient regarding his disease, investigation or treatment or about his private life, which he learns during the course of his examination, investigation or treatment, to anybody, unless the competent adult patient has consented for the same or in circumstances of privileged communication.

Guarantee of confidentiality encourages the patient to open up to his doctor about his complaints and thus help in diagnosis.

When two individuals enter into a legally recognized relationship, all communication that takes place between them is protected. This communication is known as privileged communication. It is called so because whatever information that is disclosed in this kind of setting is protected i.e. the courts cannot force the individual to disclose the details of such communication. 

The Indian Evidence Act : (Section 122 to 127) elaborates about the privileged communication which can be absolute or relative.

The absolute privileged communication relates to communication between husband and wife, the official secrets of state and between lawyer and his client. The disclosure of these communications cannot to be forced upon by anybody including the due process of law. (In the case of Vishal Kaushik v. Family Court, the Court held that if the conversation between two spouses is recorded by one of the spouses without the knowledge of the other spouse, that evidence will not be admissible in the Court. In fact, this act will amount to a breach of privacy under Article 21 of the Indian Constitution and the spouse who has recorded will be held liable.)

The relative privileged communication is between the clients of medical profession i.e. patient and doctor and chartered accountant and his client.

It is though confidential can be revealed, if needed, by consent of the party or in the interest of the society or by due process of law.

Privileged communication between a doctor and the patient :

In India, The Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002 regulate the conduct of medical professionals. 

Rule 7.14 of these regulations provides that the secrets of a patient that the registered medical practitioner has learned during the exercise of his/her profession cannot be disclosed.

Few exceptions to this rule are:

**When a presiding judge in a court orders to disclose the privileged communication

**When there exists a serious risk to a specific person and/or community

**In case of a notifiable disease concerned public authorities should be immediately informed

Rule 7.17 states that “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.” It is to be noted that if the identity is not to be disclosed then no consent is needed. 

Chapter 8 of the Rules states that if any medical practitioner violates the Physician-patient privilege then the Medical Council of India(MCI) can take any action as it deems fit against the registered medical practitioner in question, once he/she is held guilty after the inquiry. MCI can also “direct the removal altogether or for a specified period”.

The power to formulate these rules is enshrined in MCI under Section 20A of Indian Medical Council Act. 

In the landmark judgment of Mr. X Vs. Hospital Z, the Supreme Court held that a rule of confidentiality has certain exceptions, one of which is the disclosure of privileged communication between the doctor and client if it poses a serious risk to a person in case of non-disclosure. Public interest can override the right to confidentiality. For instance, in the given case it was necessary to disclose to the wife that the husband has HIV-AIDS.

It was held by the SC that, when there is a clash of two fundamental rights viz., petitioner’s right to privacy and his fiancee’s right to lead a healthy life, the court would enforce the right which would advance the public morality or public interest.

Disadvantages of Disclosure :

1. The patient may not come forward for treatment.

2. He may not disclose the information which will expose him to embarrassment or humiliation-though needed for diagnosis.

3. Patient may fear loosing his/her job, or his friends

The factors to be proved by the patients when doctor discloses the secret :

1. The patient reasonably claim the information as secret

2. The patient has not authorize the doctor for disclosing the secret.

3. He should prove the damage caused or likely to be caused.

4. Information disclosed is not in the interest of the society.

The circumstances when the secret information can be disclosed :

1. When patient has consented

2. Public interest as in the case of communicable diseases.

3. The information of minor, insane or intoxicated patient to guardian.

4. Warden or superintendent of a hostel if patient is minor

5. In case of a convict prisoner of a jail, to jailor or superintendent.

6. In case of issuing a certificate for leave at his workplace

7. Reporting or publishing a case in medical journal without patients name.

8. Professional colleagues, fellow doctors and nurses & other concerned.

9. Referring to specialist or other hospitals.

10. When the information is required by due process of law.

11. When patient brings an action of Medical negligence.

Cases where the doctor is the best judge to decide, which information is relevant and to be sent to which authority :

1. Information about sexually transmitted disease specially when patient is going to get married.

2. Information about the infectious disease.

3. Information about non-infectious disease but dangerous to society.

4. Information about the outbreak of communicable disease.

5. Information about the commission of some crime.

6. Information in the interest of patient to his close relative.

7. Disclosure in the court of law as it is relative privileged communication.

8. In the interest of doctor himself. Eg charge of medical negligence.