Q & A
Doctor and Law

Dr Gopinath Shenoy, former judge of Consumer Disputes Redressal Forum, Mumbai Suburban District answers your queries relating to legal aspects of medical practice

Is it necessary to take a written consent of the patient for the HIV test? In case the test is found to be positive can the doctor inform the spouse?

- Dr Paresh Shah, Bhavnagar, Gujarat

What is absolutely necessary before an HIV test is pre-test counselling. When a test is undertaken after counselling, wherein the patient is supposed to have asked all sorts of questions, law considers that an implied consent is present and in my opinion this should suffice. A further written consent will be an additional safe-guard against litigation.

Spouse of an HIV positive patient must be informed about the status. I will go one step ahead and state that all people who are a risk of infection should also be informed as the right to a healthy life supersedes the right to confidentiality.

The law in this regard has been settled by none other then the Supreme Court of India in ’X’ Appellant versus Hospital ’Z’ Respondents Civil Appeal No. 4641 of 1998, decided on 21st September, 1998. The fact that the appellant - Mr. X was HIV (+) was disclosed by Hospital Z to the relatives of the person with whom X was to be married. Due to this fact the said marriage was cancelled.

Since the marriage had been settled but was subsequently called off, several people including members of the appellant’s family and persons belonging to his community became aware of the appellant’s HIV (+) status. This resulted in severe criticism of the appellant and he was ostracized by the community.

The appellant left Kohima (Nagaland) and started working and residing at Madras. The appellant then approached the National Consumer Disputes Redressal Commission for damages against the respondents - Hospital Z, on the ground that the information which was required to be kept secret under Medical Ethics was disclosed illegally and, therefore, the respondents were liable to pay damages. The Commission dismissed the petition as also the application for interim relief summarily on the ground that the appellant may seek his remedy in the civil court.
Appeal was filed in the Supreme Court. Appellant vehemently contended that the principle of "duty of care", as applicable to persons in medical profession includes the duty to maintain confidentiality and since the respondents violated this duty, they were liable in damages to the appellant. The Supreme Court held that the Code of Medical Ethics also carves out an exception to the rule of confidentiality and permits the disclosure in the certain circumstances under which public interest would override the duty of confidentiality, particularly where there was an immediate or future health risk to others.

The Supreme Court further observed "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 Rights 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 lie 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 they must keep their fingers firmly upon the pulse of the accepted morality of the day," (See: Legal Duties: Alien). The appeal was thus dismissed.

Can Ayurvedic or Homeopathic doctors give vaccination?

- Dr Pawan Dwivedi, Allahabad

In my opinion, vaccination as a prophylactic measure to the prevention of diseases does not form a part of the curriculum for the degree in Aurveda, Unani and Homeopathic schools of medicine.

Vaccination is very much a part of the curriculum for the degree in the Allopathic school of medicine. Under the situation it will amount to cross-pathy practice which amounts to negligence per se and therefore should not be practiced.

If law permits Ayurvedacharias to practice Allopathy, as in few States, the situation will automatically change.

Following an IM/IV injection if a patient dies of an anaphylactic shock, can the doctor be prosecuted?

- Dr Biswajit Basu, Calcutta

An anaphylactic reaction to a drug per se does not amount to negligence. There are few drugs where a test dose is mandatory. A reaction to such a drug administered without a test dose amounts to deficiency in services.

A reaction to a drug where a test dose is not mandatory does not amount to negligence. Not identifying an anaphylactic reaction and not doing what is subsequently required to be done definitely will amount to deficiency in services and is actionable.

(You may send in your queries at drgnshenoy@yahoo.com)