BY UWAKWE ABUGU
Part of the issues that have so far dominated public space in the fight against the ravaging COVID-19 pandemic is the public outcry for the identity of the persons who have been affected by the pandemic. The confusion surrounding the identity of those concerned has led many commentators to conclude that the much hyped pandemic is a fraud to siphon public funds. Some commentators have even demanded to meet those concerned physically especially the Italian index case while others have offered themselves for elective infection” of the virus, insisting that the virus is no more than an abracadabra contrived by the government to fleece away public funds. It is against the above background, that it has become necessary to espouse the law around confidentiality of patients information especially as it affect the COVID-19 patients in Nigeria viz- a -viz government policies in this regard.
2. General Law of Patients Rights to Confidentiality
The law is settled that a patient is entitled to confidentiality of all information relating to his relationship with his health care provider. The obligation to keep the patients information secret and confidential is a fundamental rule of Medical Law and Ethics. It is imposed by both National Laws and International Codes and Declarations on Medical Ethics. Section 26 of the National Health Act is emphatic in this regard. It provides that “all information concerning a user (patients), including information relating to his or her health status, treatment or stay in a health establishment in confidential. Also Rule 44 of the Code of Medical Ethics in Nigeria, 2008 makes detailed provision securing the patients right to confidentiality in his relationship with his doctor.
The rule of confidentiality is so strong that it is not relaxed even after the death of the patient. The International Code of Medical Ethics, adopted by the World Medical Association at the World Medical Assembly in London in October 1949 provides that “a Physician shall preserve absolute confidentiality on all he knows about his patient even after the patient has died. Also the Physicians Oath (Hippocratic Oath) which is now found in the Geneva Declaration by the World Medical Association in 1948, and subscribed to by all doctors as condition precedent to admission to practice states: I will respect the secrets which are confided in me, even after patient has died.
3. Exception to Confidentiality of Patients Information
The law has anticipated circumstances in which disclosure of patients’ information may be allowed. Under Section 26(2) of the National Health Act, it is permissible to disclose information relating to the health status, treatment or stay in a health establishment where
a. The patient consents to that disclosure in writing;
b. A court order or any law requires that disclosure;
c. In the case of minor, with the request of a parent or guardian;
d. In the case of a person who is otherwise unable to grant consent upon the request of a guardian or representative; or
e. Non- disclosure of the information represents a serious threat to public health. Similarly, Rule 44 of the Code of Medical Ethics, 2008, permits discretionary breach of confidentiality where it is necessary to protect the patient or the community from danger and where statutory notification of disease is necessary. Under the code discretionary disclosure is additional to disclosure made with the consent of the patient in writing.
Other permissible grounds for disclosure of patients information include:
a) Disclosure to close relatives of the patient;
b) Disclosure to another medical personnel in appropriate cases;
c) Disclosure in the interest of a third party;
d) Disclosure at the instance of a statutory authority;
e) Disclosure in the interest of the patient; and
f) Disclosure in public interest.
For the purpose of COVID-19 pandemic, the important exceptions are disclosure at the instance of a statutory authority and disclosure in public interest.
3.1 Disclosure at the Instance of a Statutory Authority
In cases of public health concerns such as outbreak of an epidemic or pandemic, disclosure of patients information may be permissible especially by a statutory authority charged with protection of public health. In the case of the present COVID19 pandemic, the Nigeria Centre for Disease Control (NCDC), Federal Ministry of Health and the Presidential Task Force (PTF) on COVID19 pandemic qualify as such statutory authorities. Thus, while the NCDC and the Federal Ministry of Health are creations of Acts of the National Assembly, the PTF is a creation of the COVID-19 Regulations, 2020 made by the President pursuant to Section 2, 3 and 4 of the Quarantine Act, Cap. Q2, Laws of Federation of Nigeria, 2004.
Accordingly, any disclosure of COVID19 patients information by any of these statutory bodies would be valid under the law.
3.2 Disclosure in Public Interest
In justifying disclosure of confidential information on grounds of public interest, Lord Goff in the case of A-G v. Guardian Newspaper (No.2) (1988) 3 ALL ER 545 observed:
Although the basis of the laws protection of confidence is that there is public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure….It is this limiting principle, which may require a court to carry out a balancing operation weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure. (at P.659)
However it needs be emphasized that disclosure in public interest does not mean disclosure to all members of the public. In Initials Services Ltd v. Putterill (1967) 3 All ER. 145, Lord Denning held that disclosure would be permitted if it was made to someone who had proper interest in receiving the information. Also in the case of Lion Laboratory v. Evans (1994) 2 ALL ER 47, Lord Wilberforce drew a distinction between what is interesting to the public and what is in public interest for the purpose of disclosure of confidential information. In other words, a particular information may be interesting to the public but that may not justify disclosure in public interest.
Could it be that disclosure of patients confidentiality information relating to COVID-19 pandemic is just interesting to the public but may not qualify as public interest? This is more so when the National Health Act is emphatic that disclosure in public interest is permissible only where non-disclosure of the information represents a serious threat to public health. (Section 26 (2))(e). Does non-disclosure of any confidential information relating to COVID-19 patients in Nigeria represent a serious threat to public health in Nigeria?
4. Justifying the Law of Confidentiality
As Lord Goff rightly articulated in AG v. Guardian Newspaper (No. 2 ( supra), there is a public interest that confidence should be preserved and protected by the law—. (At p. 659). This public interest include the need to preserve and protect the fundamental right of the patients to privacy and family life as entrenched in Section 37 of the Constitution of the Federal Republic of Nigeria, 1999 ( as Amended).
An extension of the patients right to privacy is his right to autonomy and self-determination. The law is that every patient has a right to autonomy of his person and is interested in the protection and preservation of the integrity of his body. As such only the patient and no other person has the right to determine what should happen to his body or mind. Maintaining the patients mental health equilibrium justifies why any information which tends to upset him should not be disclosed.
Also, in law a person include his personal representatives, heirs, executors, assigns and estate as the case may be. As such the protection of secret information about the patient is of public interest because the disclosure of such information may have legal, social or even psychological consequence on all those whose claim of interest are by, under or appurtenant to that of the patient. The effect is that even if the patient is dead, the interest of his survivors, estate, etc., in the secrecy of the confidential information still subsists. This further supplies anchorage for the obligation to keep such confidential information even after the patients death.
Finally, maintaining confidentiality of patients information is at the heart of good doctor-patient relationship. A patient would readily disclose all his health information to the doctor once he has confidence that such information would be kept secret.
5. Applying Law of Confidentiality to COVID-19 Patients
There is no doubt that all patients afflicted by COVID-19 pandemic are entitled to the protection and preservation of their confidential medical information relating to their health status, treatment, and stay in a health establishment (section 26 of the National health Act). Interestingly, the public outcry for disclosure is actually none of the above three elements. The general mood is the need for the disclosure of the identity of the people affected, especially the index case. Curiously, the law does not protect the identity of the patient but rather his health related information. For instance, it may be permissible for a doctor to say that: John is my patient but it would be wrong for him to say: John was admitted into my hospital for Hepatitis B.
However the special predicament of COVID-19 pandemic is that the health status, and the place of treatment appear to already be in the public domain as revealed by the appropriate statutory bodies. For instance, it is clear that the index case was admitted into the Infectious Disease Hospital, Yaba, Lagos. His health status was also disclosed by announcing that he tested positive to the COVID 19. Even though the mode of treatment appear to be in public domain, this has not been officially announced by the statutory authorities. Since it concerns the health information of the patients, nobody can justifiably insist on its disclosure. But the public clamour is on the disclosure of the identity of especially the index case. Such identity may include the photograph, name, address, e.t.c.
The contending issues here are:
a. Whether the government is justified in withholding the mans identity when the law clearly protects his medical information and not identity and
b. What is the public interest in the identity of the man or is his identity merely interesting to the public and not of public interest according to Lord Wilberforce?
On the first issue, since the law does not protect the identity of the patient but his medical information, the government is acting outside the law in withholding his identity. This is supported by answer to the second issue in that since most, if not all COVID-19 pandemic patients are treated with public funds and donation from corporate and private individuals, the interest of the public in knowing their identity is not just fanciful but well founded in a democratic society rooted on public probity and accountability. This is especially so when the identity of the patients is not protected by the law.
In Nigeria where every step taken by government is viewed with suspicion due to long standing misgovernance and official corruption, it is of paramount public interest that the identity of the index case is disclosed at least to prove beyond doubt that COVID-19 came to Nigeria the time it was alleged to have landed.
This view appear to find support in the recent disclosure of the names of about 13 Nigerians who died of COVID-19 abroad by the Nigerians in Diaspora Commission (NIDCOM). If the identity of great Nigerians who died of COVID-19 abroad including that of a Senior Advocate of Nigeria (SAN) and former Director General of the Nigerian Law School could be disclosed, one wonders what is esoteric about disclosing the identity of the index case in Nigeria.
It is settled that being infected by COVID-19 is not a death sentence.This appears to be part of the reasons why government encourages members of the public to identify themselves on suspicion of contracting the virus. Several toll free lines are provided by government while some high profile citizens infected by the virus have voluntarily owned up to their positive status.
Between the two extremes of continued secrecy of the identity of the index case and other cases on the one hand, and the disclosure of the identity of Nigerians who died of the COVID-19 abroad, there is room for suspicion of governments good faith in withholding information. One may prefer that the government should clear the suspicion of fraud, corruption and underhand dealings by coming out clear with all required identities of the infected persons. This would elicit public confidence in their management of and fight against the pandemic.
* Abugu is a Professor of Medical Law and Ethics, Faculty of Law, University of Abuja and
President, Lifeline Centre for Medical and Health Rights Advocacy.