On the altar of granting fundamental human rights to citizens of Ghana, Article 21(1)(f) of the 1992 Constitution provides for right to information. 

Pursuant to this constitutional provision, Ghana enacted the Right to Information Act, 2019 (Act 989) to guide matters relating to accessing information kept by public institutions, including public hospitals.

Act 989

The object of Act 989 reads, “An Act to provide for the implementation of the constitutional right to information held by a public institution, subject to the exemptions that are necessary and consistent with the protection of  public interest in a democratic society, to foster the transparency and accountability in public affairs and to provide for related matters”.

Accordingly, it is imperative that managers of public hospitals become aware and are persistently reminded through public education regarding the legal regulatory framework for disclosure of patients’ medical records to third parties.

This piece seeks to contribute meaningfully to that required public education.

Section 84 of Act 989 states that information includes recorded matter or material.

Whereas the law provides for right to information, it equally exempts certain information, including privileged information from disclosure as duly provided for by Section 15.

Section 84 states that exempt information means information which falls within any of the exemptions specified in Sections 5 to 16.

However, Section 17(1) of the law provides that despite the provision of this Act on information exempt from disclosure, information is not exempt from disclosure if the disclosure of the information reveals evidence of:

a) a contravention of, or a failure to comply with the law
b) an imminent and serious threat to public safety public health or morals, the prevention of disorder or crime or the protection of the rights of freedoms of others
c) a miscarriage of justice
d) an abuse of authority or a neglect in the performance of an official function or
e) any other matter of public interests and the benefits of disclosure clearly outweigh the harm or danger that the disclosure will cause.

In order to protect a person who discloses or authorises the disclosure of information for the protection of public interest Section 17(2) of the law exempts that person from civil or criminal liability for such disclosure or authorisation of same.

Access to information

Sections 1 and 18 of Act 989 jointly provide for the right of access to information and the procedure for information kept by public institutions including public hospitals.

Specifically, Section 18(1) provides that an application to access information held by a public institution shall:

a) be made in writing to the public institution
b) contain sufficient description to enable the information to be identified 
c) indicate the form and manner of access required 
d) state the capacity of the applicant to the satisfaction of the information officer to whom the application is made if the application is made on behalf of another person
e) state name of applicant, an address to which notice can be sent
f) provide identification of the applicant
g) be signed by the applicant.

It should be noted that Section 84 defines information officer as the Information Officer of the public institution to whom an application is made.

Accordingly, Section 19 mandates the information officer to deal with an application for information kept by public institution.

Section 27(1) (b) of Act 989 also provides “A public institution may refuse access to information if the information is an exempt information”.

However, Section 23(4) places responsibility on the information officer to clearly state the reason for his/her refusal to grant access to a public institutional information and he/she must equally state that provision of the law under which the decision for the refusal is based.

However, under Sections 36 and 37, the applicant, whose request for information has been declined can seek for judicial review at the High Court and when granted, the court may require the information officer to submit the said information to the court but the court’s proceedings must be held in camera under the circumstance.

Health information disclosure

Privileged information is the information whose disclosure the Right to Information Law has exempted.

As such, Section 15 (1) (b) stipulates, “Information is exempt from disclosure where the disclosure of information reveals confidential communication between a doctor and a patient or any other medical expert in connection with the medical diagnosis or treatment of the patient.”

Without prejudice to Section 15 (1) cited ut supra, Section 15 (2) states that the person whose privileged information is under consideration may choose to waive the privilege to warrant disclosure of the said information to a third party.

The Patient Charter, which is enshrined in Section 167 of the Public Health Act, 2012 (Act 851) also gives the patient the right to confidentiality of his/her clinical information.

The Charter further prohibits the disclosure of the patient’s health information to third parties without the consent of the patient or the person entitled to act on the consent of the patient.

The only exception to this provision of the Charter is where the information is required by law or is in the public interest. 

Reasonable and unreasonable disclosure

Regarding disclosure of Health Information and in accordance with the Patient’s Charter, the Right to Information law further provides under its Section 16 (3) (l) and 16 (3) (b) that it is reasonable to disclose confidential health information to a third party if the disclosure is about the physical or mental health or well-being of the individual who is under the care of the third party provided that the patient in question is:

a) under the age of 18 years
b) mentally incapable and giving access will benefit the individual.
c) If the disclosure is required to promote public health or public safety.

On the Contrary, disclosure of information is unreasonable if it reveals or is likely to reveal information about a living or deceased individual’s physical or mental health.  

Conclusion

To this end, we ardently hope that this piece/discussion will not only be an educative material but also a reference document for public sector health workers who may be contacted by third parties to disclose the health information of their clients for one reason or another.

Particularly, public sector health workers must be mindful of the legal implications of unreasonable disclosure of health information stated herein.

Writers are a hospital administrator and houseman health service administrators respectively

SOURCE: GraphicOnline