Patients’ Access to Medical Records: Is It a Privilege or a Substantive Right?
Affiliation(s)
1 School of Public Health, Hohoe Campus, University of Health and Allied Sciences, Ho, Ghana. 2 Institute for Security, Disaster and Emergency Studies, Sandpiper Place, Langma, Ghana. 3 Department of Epidemiology and Disease Control, University of Health and Allied Sciences, Ho, Ghana.
1 School of Public Health, Hohoe Campus, University of Health and Allied Sciences, Ho, Ghana. 2 Institute for Security, Disaster and Emergency Studies, Sandpiper Place, Langma, Ghana. 3 Department of Epidemiology and Disease Control, University of Health and Allied Sciences, Ho, Ghana.
ABSTRACT
The common law on Patient’s access to medical records in Ghana was articulated in a High Court case: Vaah vs. Lister, 2010. The case established that patient’s right to medical records was protected by the constitution like the right to informed consent, equity and social justice. It was therefore part of the fundamental human rights and freedoms. We disagree with the position of the court. We investigated whether the constitution guarantees patient’s access to medical records and whether the right of access to medical records is a fundamental human right? What is the responsibility of the patients to the hospitals or physicians who maintain and protect the records? In the more recent Data Protection Act of 2012, access to personal data appears as a privilege and therefore not the same as the substantive right of privacy. This investigative study consisted of literature and documentary review of cases, the 1992 Constitution, selected medico-legal writings from Ghana and other Common-law jurisdictions on production of patient records. An electronic Internet search was conducted with carefully designed phrases like, “patient medical records”, “patient access to medical records”, and “hospital’s refusal to release medical records” and the result analyzed. The study revealed there was no substantive right of access to medical records. Issues of equity imbedded in the Physician-Patient relationship are skewed in favor of the patient. The lack of national legislation on Health Records complicates matters. Depending on the jurisdiction, patient’s access to medical records may be characterized as substantive right or a privilege. This is often supported by statute law. The interpretation of case law should take into consideration the relative and competing rights of the patient and the physician in terms of patients’ access to medical records since both contributed to the creation of that record. The national law on Health Information should be developed to assign roles and responsibilities to both the patient and the hospital/physician. Care needs to be paid to what exactly the (Constitution of Ghana, 1992) provides to patients, since there does not appear to be specific and substantive right to either privacy or access to patient records.
The common law on Patient’s access to medical records in Ghana was articulated in a High Court case: Vaah vs. Lister, 2010. The case established that patient’s right to medical records was protected by the constitution like the right to informed consent, equity and social justice. It was therefore part of the fundamental human rights and freedoms. We disagree with the position of the court. We investigated whether the constitution guarantees patient’s access to medical records and whether the right of access to medical records is a fundamental human right? What is the responsibility of the patients to the hospitals or physicians who maintain and protect the records? In the more recent Data Protection Act of 2012, access to personal data appears as a privilege and therefore not the same as the substantive right of privacy. This investigative study consisted of literature and documentary review of cases, the 1992 Constitution, selected medico-legal writings from Ghana and other Common-law jurisdictions on production of patient records. An electronic Internet search was conducted with carefully designed phrases like, “patient medical records”, “patient access to medical records”, and “hospital’s refusal to release medical records” and the result analyzed. The study revealed there was no substantive right of access to medical records. Issues of equity imbedded in the Physician-Patient relationship are skewed in favor of the patient. The lack of national legislation on Health Records complicates matters. Depending on the jurisdiction, patient’s access to medical records may be characterized as substantive right or a privilege. This is often supported by statute law. The interpretation of case law should take into consideration the relative and competing rights of the patient and the physician in terms of patients’ access to medical records since both contributed to the creation of that record. The national law on Health Information should be developed to assign roles and responsibilities to both the patient and the hospital/physician. Care needs to be paid to what exactly the (Constitution of Ghana, 1992) provides to patients, since there does not appear to be specific and substantive right to either privacy or access to patient records.
Cite this paper
Norman, I. , Kweku, M. , Awiah, B. and Binka, F. (2015) Patients’ Access to Medical Records: Is It a Privilege or a Substantive Right?. Advances in Applied Sociology, 5, 291-298. doi: 10.4236/aasoci.2015.512028.
Norman, I. , Kweku, M. , Awiah, B. and Binka, F. (2015) Patients’ Access to Medical Records: Is It a Privilege or a Substantive Right?. Advances in Applied Sociology, 5, 291-298. doi: 10.4236/aasoci.2015.512028.
References
[1] (1992). Ghana’s Constitution. Accra: Government Printers. [2] Breen, & Williams (1996). 186 CLR 71, 138 ALR 259. [3] Cannel, J. E., & The Medical and Surgical Clinic (1972). 104 Cal. Rptr. 505, 516, 502 P.2d 1, 12. [4] Emmet v. Eastern Dispensary and Casualty Hospital (1967). 396 F. 2d. 931, 130 U. S. App. D. C. 50. [5] Francis, L. P. (2010). The Physician-Patient Relationship and a National Health Information Network. Journal of Law, Medicine and Ethics, 36-49.
http://dx.doi.org/10.1111/j.1748-720X.2010.00464.x [6] Ghana Health Service Patient Charter. Accra: Ministry of Interior, Private Mail Bag, Ministries, Osu. [7] Ghana Medical Association. Principles for GMA. Accra: Ghana Medical and Dental Council, 1-2. [8] Goodman, K. W. (2010). Ethics, Information Technology, and Public Health: New Challenges for the Clinician-Patient Relationship. Journal of Law, Medicine and Ethics, 58-63.
http://dx.doi.org/10.1111/j.1748-720X.2010.00466.x [9] Gostin, L. O., & Hodge, J. G. (1999). Model State Public Health Privacy Act. Washington DC: Georgetown University Law Center, 1-59. [10] HIPAA (1996). US Public Law. 104-191.
http://www.hhs.gov/ocr/privacy/hipaa/understanding/summary/index.html [11] Lee, I. M., & Gostin, L. O. (2009). Ethical Collection, Storage and Use of Public Health Data. JAMA, 302, 82-84.
http://dx.doi.org/10.1001/jama.2009.958 [12] McInerney, & MacDonald (1992). 2 S.C.R. 138. [13] Norman, I. D., Aikins, M., Banyubala, D., Edwin, A., & Binka, F. N. (2012). The Constitutional Mandate for Judge-Made-Law and Judicial Activism: A Case Study of the Matter of Elizabeth Vaah v. Lister Hospital and Fertility Centre. The Open Ethics Journal, 6, 1-7.
http://dx.doi.org/10.2174/1874761201206010001 [14] R v. Mid Glamorgan Family Health Services Authority, ex parte Martin (1995). 1 All ER 356, 1 WLR 110, CA, 21 BMLR 1. [15] R. v. Dyment (1988). 2 S. C. R. 417. [16] Ross, S. E., & Lin, C.-T. (2003). The Effects of Promoting Patient Access to Medical Records: A Review. Journal of the American Medical Informatics Association, 10, 129-138.
http://dx.doi.org/10.1197/jamia.M1147 [17] Shenkin, B. N., & Warner, D. C. (1973). Sounding Board. Giving the Patient His Medical Record: A proposal to Improve the System. The New England Journal of Medicine, 289, 688-692.
http://dx.doi.org/10.1056/NEJM197309272891311 [18] Tucker, G. (1978). Patient Access to Medical Records. Legal Aspects of Medical Practice, 6, 45-50. [19] Vaah, E. (2010). Lister Hospital and Fertility Centre Suit # HRCM 69/10/2010. Accra: Fast Track Court, Accra Courts.
[1] (1992). Ghana’s Constitution. Accra: Government Printers. [2] Breen, & Williams (1996). 186 CLR 71, 138 ALR 259. [3] Cannel, J. E., & The Medical and Surgical Clinic (1972). 104 Cal. Rptr. 505, 516, 502 P.2d 1, 12. [4] Emmet v. Eastern Dispensary and Casualty Hospital (1967). 396 F. 2d. 931, 130 U. S. App. D. C. 50. [5] Francis, L. P. (2010). The Physician-Patient Relationship and a National Health Information Network. Journal of Law, Medicine and Ethics, 36-49.
http://dx.doi.org/10.1111/j.1748-720X.2010.00464.x [6] Ghana Health Service Patient Charter. Accra: Ministry of Interior, Private Mail Bag, Ministries, Osu. [7] Ghana Medical Association. Principles for GMA. Accra: Ghana Medical and Dental Council, 1-2. [8] Goodman, K. W. (2010). Ethics, Information Technology, and Public Health: New Challenges for the Clinician-Patient Relationship. Journal of Law, Medicine and Ethics, 58-63.
http://dx.doi.org/10.1111/j.1748-720X.2010.00466.x [9] Gostin, L. O., & Hodge, J. G. (1999). Model State Public Health Privacy Act. Washington DC: Georgetown University Law Center, 1-59. [10] HIPAA (1996). US Public Law. 104-191.
http://www.hhs.gov/ocr/privacy/hipaa/understanding/summary/index.html [11] Lee, I. M., & Gostin, L. O. (2009). Ethical Collection, Storage and Use of Public Health Data. JAMA, 302, 82-84.
http://dx.doi.org/10.1001/jama.2009.958 [12] McInerney, & MacDonald (1992). 2 S.C.R. 138. [13] Norman, I. D., Aikins, M., Banyubala, D., Edwin, A., & Binka, F. N. (2012). The Constitutional Mandate for Judge-Made-Law and Judicial Activism: A Case Study of the Matter of Elizabeth Vaah v. Lister Hospital and Fertility Centre. The Open Ethics Journal, 6, 1-7.
http://dx.doi.org/10.2174/1874761201206010001 [14] R v. Mid Glamorgan Family Health Services Authority, ex parte Martin (1995). 1 All ER 356, 1 WLR 110, CA, 21 BMLR 1. [15] R. v. Dyment (1988). 2 S. C. R. 417. [16] Ross, S. E., & Lin, C.-T. (2003). The Effects of Promoting Patient Access to Medical Records: A Review. Journal of the American Medical Informatics Association, 10, 129-138.
http://dx.doi.org/10.1197/jamia.M1147 [17] Shenkin, B. N., & Warner, D. C. (1973). Sounding Board. Giving the Patient His Medical Record: A proposal to Improve the System. The New England Journal of Medicine, 289, 688-692.
http://dx.doi.org/10.1056/NEJM197309272891311 [18] Tucker, G. (1978). Patient Access to Medical Records. Legal Aspects of Medical Practice, 6, 45-50. [19] Vaah, E. (2010). Lister Hospital and Fertility Centre Suit # HRCM 69/10/2010. Accra: Fast Track Court, Accra Courts.