PRIVACY

Why disclosing Covid-19 patients doesn't meet legal and moral threshold

Disclosure of the patients would have an effect on their own and their family security.

In Summary

• There have been calls for the government to disclose the identity of persons suffering from Covid-19.

• The argument is that this will assist in tracing persons who may have come in contact with the patient. But would it be legal?

Director of Health services Dr Patrick Amoth and Health CS Mutahi Kagwe during the daily briefing on Covid-19 at Afrya House on Saturday, March 28, 2020.
Director of Health services Dr Patrick Amoth and Health CS Mutahi Kagwe during the daily briefing on Covid-19 at Afrya House on Saturday, March 28, 2020.
Image: DOUGLAS OKIDDY

Whatsoever things I see or hear concerning the life of men, in my attendance on the sick or even apart therefrom, which ought not to be noised abroad, I will keep silence thereon counting such things to be as sacred as secrets. (The Hippocratic Oath, 4th Century BC)

There have been calls for the government to disclose the identity of persons suffering from Covid-19.

The argument is that this will assist in tracing persons who may have come in contact with the patient. But would it be legal? Will it not have an effect of stigmatisation on the patients and their families?

During treatment, sensitive or intimate information is disclosed to a medical officer. When a patient discloses such information to a medical professional, a duty of confidence arises. Confidentiality between a health professional and a patient is one of the most important principles of medical practice. It goes to the core of the privacy of the patient.

This privacy is of critical importance to the protection of an individual’s human dignity. Private space must be protected from unwarranted and unjustified interference. Privacy protects an individual from arbitrary and unjustified use of power by government or other private citizens and organisations.

The right to privacy is an international human right. Article 17(1) of the International Covenant on Civil and Political Rights provides: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation”.

The Human Rights Committee in General Comment No. 16 states:As all persons live in society, the protection of privacy is necessarily relative. However, the competent public authorities should only be able to call for such information relating to an individual’s private life the knowledge of which is essential in the interests of society as understood under the Covenant …Compliance with article 17 requires that the integrity and confidentiality of correspondence should be guaranteed de jure and de facto. Correspondence should be delivered to the addressee without interception and without being opened or otherwise read …Effective measures have to be taken by States to ensure that information concerning a person’s private life does not reach the hands of persons who are not authorized by law to receive, process and use it, and is never used for purposes incompatible with the Covenant”.

Our Constitution provides for the right to privacy. Article 31(c) provides that “information relating to their family or private affairs unnecessarily required or revealed.”

Justice John Mativo in the case of Kenya Human Rights Commission v Communications Authority of Kenya & 4 others [2018] eKLR stated: “(52) Privacy is a fundamental human right, enshrined in numerous international human rights instruments. It is central to the protection of human dignity and forms the basis of any democratic society. It also supports and reinforces other rights, such as freedom of expression, information, and association. The right to privacy embodies the presumption that individuals should have an area of autonomous development, interaction, and liberty, a “private sphere” with or without interaction with others, free from arbitrary state intervention and from excessive unsolicited intervention by other uninvited individuals ...

"(53) A person’s right to privacy entails that such a person should have control over his or her personal information and should be able to conduct his or her personal affairs relatively free from unwanted intrusions. Privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable … Our constitution protects privacy as an elemental principle, but the Court has to be sensitive to the needs of and the opportunities and dangers posed to liberty in a digital world.”

Part II of the Health Act provides for rights and duties. Section 11(1) of the Act provides: “(1) Information concerning a user, including information relating to his or her health status, treatment or stay in a health facility is confidential except where such information is disclosed under order of court or informed consent for health research and policy planning purposes.” However, disclosure of such information may occur only under circumstances provides for under Section 11(2) of the Act, which are,

  • the user consents to such disclosure in writing in the prescribed form;
  • a court order or any applicable law requires such disclosure; or
  • non-disclosure of the information represents a serious threat to public health.

In the case of JLN and 2 Others vs Director of Children Services and 4 Others (2014) eKLR, a question arose as to whether the disclosure of medical records of the petitioner to a third party by the hospital violated their right to privacy guaranteed under Article 31 by unnecessarily and without just cause disclosing confidential medical information to a third party.

 Justice DS Majanja ruled: “(22). The right to privacy is not absolute. Implicit in the protection accorded is that information relating to family and private matters must not be “unnecessarily revealed.” Indeed, counsel for the petitioner submitted that there are instances where the right to privacy in respect of the patient/client relationship may be abridged. He cited the case of W v Edgell [1990] 1 ALL ER 835 where Lord Bingham set out the principles under which a doctor may disclose the information held in confidence. The principles were as follows;

  1. A real and serious risk of danger to the public must be shown for the exception to apply.
  2. disclosure must be to a person who has legitimate interest to receive the information.
  • disclosure must be confined to that which is strictly necessary (not necessarily all the details).”

In the case of David Lawrence Kigera Gichuki v Aga Khan University Hospital [2014] eKLR, Justice Mumbi Ngugi, after considering the disclosure of a person’s medical information by his doctor in other jurisdictions, held that; “(29). The principles that emerge from the above considerations are therefore as follows:

  1. That a medical practitioner or medical facility is under an obligation not to release confidential information about a patient without the patient’s knowledge or consent;
  2. That there are, however, circumstances in which the medical practitioner or institution may be required to release such information for valid governmental and public interest reasons;
  3. That a medical practitioner or institution may be required by law or a court order to release information about a patient without the patient’s consent.

Ngugi emphasised that “(35). It cannot be in the interests of the doctor/patient relationship for any person to be able to request for and obtain information from a doctor regarding a patient. While the confidentiality is not absolute and public interest considerations may override it in some cases, the medical practitioner or institution must bring itself within the limitations provided by law.”

In order to determine whether the disclosure of information in relation to patients currently under Covid-19 treatment is proper and legal, it is of importance to examine how such an issue has been dealt with in the fight against HIV-Aids.

Part V of the HIV and Aids Prevention and Control Act provides for confidentiality. Section 22(1) forbids disclosure of information concerning the result of an HIV test or any related assessments to any other person except under circumstances provided for under the Act. The Act emphasises that proper consent must be obtained or one must have a court order for such information to be disclosed.

The HIV and Aids Tribunal had the opportunity to examine disclosure of one’s status in the HAT Case SNW v Asha Gulam [2019] eKLR, where the tribunal held that “(16) … Section 22 of HAPCA must be understood in this context – it protects against the unnecessary revelation of information relating to the HIV status of a person. Such information forms part of a person’s private affairs, which disclosure can potentially cause mental distress and injury to a person and there is thus need to keep such information confidential. Taken in that context, the right to privacy in relation to a person’s HIV status protects the very core of the personal sphere of an individual and basically envisages the right to live one’s own life with minimum interference and without the risk of stigmatization, discrimination and rejection by family, friends and the community.

(25). We would agree and add that the protection of informational privacy must serve a lawful purpose of the preservation of a person’s dignity. Confidentiality is therefore crucial to persons living with HIV/AIDS because HIV infection is associated with sexual and drug related activities and as such disclosure of one’s HIV status can expose HIV Positive individuals to stigmatization, discrimination and rejection by family, friend and community.”

One of the arguments raised on the need to disclose the particulars including names and photographs, of Covid-19 patients is to enable other persons to seek testing and or quarantine themselves.

Health Cabinet Secretary Mutahi Kagwe has on several occasions been quoted saying "the government is undertaking contact tracing of persons who have come to contact with Covid-19 patients" pursuant to information disclosed by the patients.

Based on government pronouncements, is there a need to disclose the identity of the patients?

On March 18, it was widely reported that a person identified as George Kotini Hezron, a Kwale resident was killed by a mob. It is said George was sneezing as he passed a group of youths seated by the roadside.

His sneezing reportedly attracted the youth who accused him of being a coronavirus patient. Based on what George went through, would it be safe to disclose the identity of Covid-19 patients?

Based on the three conditions for disclosure placed by Section 11 of the Health Act, it is my humble view that such a disclosure under the current circumstances would not meet the legal and moral threshold.

It is humbly submitted that there is no danger or serious threat to the public due to the fact that all the person currently under treatment, their details especially persons they were in contact with, have been provided to the government. 

Kagwe has already assured that contact tracing is an ongoing process.

Disclosure of the patients would have an effect on their own and their family security. This cannot be understated, the Kwale killing is a classic example.

The public is yet to fully appreciate the symptoms and how the virus is spread. It is my humble opinion that disclosure would lead to stigmatisation, discrimination and rejection by family, friend and community.

The Ministry of Health should thus reject calls to disclose the identity of Covid-19 patients unless express well-informed written consent is obtained from the patient.

Ondimu is the principal prosecution counsel at Office of the Director of Public Prosecutions 

DISCLAIMER: The views and opinions expressed in this article are those of the author and do not reflect the official policy or position of the Office of the Director of Public Prosecutions.