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X Vs Z on AIDS

A Critical Analysis of supreme court Judgment on disclosure of the fact of H.I.V. patient by the Hospital authorities without the express consent of the patient.
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Authored By: Anupam Tripathi - (Advocate)
MR X ....................Appellant Versus Hospital Z ..................Respondent - (1998) 8 Supreme Court Cases 296 ~ A Critical Analysis.

Facts of The Aids Case

The facts of the case in brief were as follows:
1. The Appellants blood was to be transfused to another and therefore a sample thereof was taken at the Respondents Hospital.

2. The Appellant was found to be H.I.V.(+).

3. On account of disclosure of the fact that the Appellant was H.I.V.(+) by the Hospital authorities without the express consent of the Appellant, the Appellants proposed marriage to Ms A which had earlier been accepted, was called off.

4. Moreover, the Appellant was severely criticized and was also ostracized by the community to such an extent that he had to leave is place of work and residence and shift to a new city.

5. The Appellant approached the National Consumer Dispute Redressal Commission for damages against the Respondents on account of injury and damages suffered to him because of disclosure of information required to be kept secret under medical ethics by the Hospital authorities.

6. The Commission however dismissed the complaint on the ground that the Appellant could seek his remedy in the Civil Court.

7. The Appellant thus appeared before the Supreme Court contending that the principle of Duty of care applicable to persons in medical profession included the Duty to maintain confidentiality and the said duty had a correlative right vested in the patient that whatever came to the knowledge of the doctor would not be divulged.

8. The Appellant contended that for violating the above duty as well as the Appellants right to privacy, the Respondents were liable to pay damages.
Issues Before The Supreme Court:

The issues before the Supreme Court were as follows:
1. Whether the Respondents were guilty of violating the Appellants right to privacy guaranteed under article 21 of the constitution? 2. Whether the Respondents were guilty of violating their duty to maintain secrecy under medical Ethics?

Judgement of The Supreme Court:
The Judgement of the Supreme Court was as follows:
1. In deciding the first issue, the Court held that in the event of a conflict between the Appellants fundamental right to privacy and Ms As fundamental right to be informed about any threat to her life/health, in such an event the Latter's right to be informed will override the Appellants right to privacy. Hence the Court held the Respondents not guilty on the first count.

2. In deciding the second issue, the Court held that the duty to maintain secrecy in every Doctor-Patient relationship was also not absolute and such duty could be broken and hence secret divulged where compelling public interest so requires. Hence the Court held the Respondents not guilty on the second count as well.

3. The Court further held that The Appellants right to marry was suspended until complete cure of the Appellants dreadful disease. The Court based this decision on various Statutes which give right to spouse to seek divorce on ground of the other suffering from a communicable venereal disease such as AIDS.

4. The Court held that in the event the Appellant did decide to marry while suffering from such dreadful disease, he shall be punishable under section 269 & 270 of the Indian Penal Code.

5. The court held that AIDS is the product of undisciplined sexual impulse. This impulse being a notorious human failing if not disciplined can afflict and overtake anyone however high or low he may be in social strata. The Court cannot assist that person to achieve that object.

6. The Court held that the Hippocratic Oath taken by medical men at time of entering profession is not enforceable in the Court of law as it lacks statuary force.

My Comments On The Supreme Court Judgement-A Critical Analysis:
Every human being is capable of making mistakes. The degree of mistake made by one as compared to another may vary. But mistakes we all make. The Supreme Court of India-an embodiment of justice, the highest court of the land is no exception.

In my humble opinion, the above Judgment was a mistake. My reason for holding such an opinion is based on the following details discussed broadly below:
i. The issue before the Supreme Court was whether or not a breach of confidentiality and privacy by the Hospital authorities had indeed taken place. However the judgment makes out that the complainant was contesting his right to marry, which is factually incorrect. It is an elementary principle of Jurisprudence that the Court will not decide on issue not raised before it. Thus by deciding on an issue not before the court such as the Appellants right to marry, such decision is in fact no decision in law.

ii. Further more it may be noted that for the first time in the judicial history anywhere in the world a Court has taken away the fundamental right of an individual to marry.

iii. Even for the sake of argument if one was to believe that right to marry was an issue before the Court in the present case, it cannot be take away as it is an absolute right. The reason for the same is that the right to marry of an individual flows directly from his right to life guaranteed under article 21 of the constitution of India. Article 21 extends to citizens and aliens alike and a person suffering from AIDS is no exception. Prior to the 44th Amendment the constitution provided for the suspension of this right under article 359 on the Presidents order to that effect. However after the 44th Amendment things have changed and now article 21 cannot be suspended at any point of time even on such order of the President, thus making rights flowing under it

iv. With reference to the Courts decision regarding the issue of conflict of the Appellants right to privacy against Ms As right to be informed and that whos right would override who's right. The Court failed to take notice of the following points:

The Court overlooked the fact that the Appellant in the present case was himself a Doctor who could be reasonably expected to be aware of the dangers of the disease and hence his consent should have at least been taken by the hospital authorities before publicly declaring his disease which had the effect of making him a victim of gross discrimination, and led him to being ostracized from the community.

Furthermore, the Court also failed to hear out one of the essential parties to the case- Ms A who's right was in question if at all, or was made out to be by the Court.

v. With reference to the Courts decision on the second issue of whether the Respondents were guilty of violating their duty to maintain secrecy, the Court held them not guilty as such duty of maintaining secrecy could be broken in public interest. Here the Court filed to take into account the fact that India has over 2 million reported AIDS infected patients and maybe more unreported persons. By setting such a precedent whereby a Hospital gets license to break their duty to secrecy in so called public interest leading to the ostracizing of an entire community of AIDS infected persons, the Court erred to take into account that compelling public interest lied in favour of the Appellant and the rest of such community consisting of a sizable population of over 2 million. The court failed to recognize the havoc such precedent would have over the entire community of such AIDS patiens who were already dealing everymoment of their lives with certain death.

vi. It is extremely disappointing to learn that the Court went on to hold that the Appellant would be guilty under sections 269 and 270 if he decided to marry Ms A where marriage was not even an issue before the Court. Such a decision defies logic and has an effect of rubbing salt on a wounded person.
vii. It may further be noted that the Courts reason for arriving at the decision of suspending the Appellants right to marry was based on Statutes such as Hindu Marriage Act, Dissolution of Muslim Marriage Act, Parsi Marriage and Divorce Act, Indian Divorce Act, Special Marriage Act. These Acts being spoken of above all provide for a communicable venereal disease as a ground for divorce, but none hold that a person cannot marry if he suffers from such disease. This important distinction was clearly missed by the learned judges.

viii. Furthermore the Court failed to recognize that by setting such a precedent whereby the doctor could break his duty to maintain secrecy, such a precedent would only drive the disease underground, which would defeat the very objective of prevention of transmission of such disease in the first place.

ix. The Court held that the Hippocratic Oath taken by medical men at the time of entering the medical profession could not be enforced as it lacked Statuary force. Here it is worth noting that the Court applied failed to recognise the principle as to why such a Hippocratic Oath was required to be taken by medical me in the first place. Here the Court applied a very narrow minded approach and hence missed out on the larger picture.

x. It is extremely disappointing to learn that the Court went on to opine that AIDS is the product of undisciplined sexual impulse and hence the Court could not assist the Appellant to achieve such object. Such an opinion of the Court clearly underscores the presumptuous nature and the narrow minded approach which the Court adopted in solving the instant case. It was a clear case of forming a judgement and jumping to conclusions without hearing the other side and digging facts. It is a common principle of Jurisprudence that of Audi alteram partem- to hear to other side and that no man should be condemned unheard. The same principle was ignored by the Court in principle and in practice. The Court overlooked the fact that the Appellant had acquired the disease as a result of blood transfusion and not undisciplined sexual impulse.

xi. It is note worthy that there are many other forms of communicable disease that are in fact easier to acquire that HIV like TB, Hepatitis B, yet no restrictions are placed on persons suffering from these illness, then isnt it not discriminatory and arbitrary in nature to place restrictions on people who are HIV+.
xii. In the present case the Court completely ignored the fact that the Appellant had suffered damages as a result of such disclosure which led him to being so severely criticised and ostracized from the community as a result of which he was driven to leave his place of work and residence and shift to a new city for some respite. The Court refused to grant compensation to the Appellant and there by ended up setting a precedent which would not just discourage AIDS patient from coming out in open but also encourage people to discriminate against such persons who were already suffering fro such dreadful disease and pain.

The decision of the Supreme Court sent shock waves in the HIV community throughout the world. The decision was most unfortunate and arrived at in haste without fully comprehending the issues and being sensitive to them. The Court overlooked the larger picture while deciding the current matter and failed to recognise that its decision would impact not just the Appellant but the entire AIDS struck community at large.

During my Law School days this case had come up for much discussion and debate. Thankfully times have changed since 1998 and in more recent cases in determining the rights of AIDS patients the Supreme Court adopted a far more liberal and compassionate view on this topic in giving AIDS patients their long due rights and thereby overriding the 1998 judgement.

At this point I would like to conclude this analysis by quoting Dominic D Souza a late HIV Activist who said:
" live in the hope of a world that will be free, if not free of disease, free of fear and discrimination".

The author can be reached / Print This Article

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