Your wife got pregnant and was receiving antenatal services from a reputable hospital. All scans and diagnostic checks by the medical expert pointed to a healthy foetus. You took your wife to the same facility to deliver when she was due. Unfortunately, she delivered a still born baby. Naturally stunned at the turn of events, your wife requested for a copy of her medical records for use by her physician if she decides to have another baby in future. Her request was declined by the hospital on grounds that your wife was overheard discussing her intention to sue the hospital for medical negligence.
Is the hospital right to decline your wife’s request for her medical records?
Is accessibility to one’s own medical record a right or privilege?
Can a third party access a patient’s medical record on his/her behalf?
Who owns a patient’s medical record? Is it the patient or the hospital?
MEDICAL RECORDS
A medical record refers to a document containing a patient’s medical history, diagnosis, treatment and other relevant health information. Amongst other benefits, medical records provide documentary evidence of patients’ interaction with their physician. Medical records are therefore a crucial resource for planning, research, education, monitoring and evaluation of health services.
Also, they are the go-to document in an event of legal dispute involving patients and their healthcare providers. For these reasons, the medical records unit is generally an essential part of every health facility.
Medical records are deemed active when in use i.e. for patient care, research, educational purposes to name but a few. Such active medical records may be retained for as long as they are needed. However, for inactive medical records (i.e. when a folder has not been used for five years), the law mandates health facilities to retain same in inactive storage for an additional five years before disposal.
Medical records may only be disposed of by health facilities in Ghana subject to prior written approval from the Public Records and Archives Administration Department.
Section 9 of Public Records and Archives Administration Act, 1997 (Act 535) mandates heads of public institutions where public records are created and kept to establish good records keeping practices. The Ministry of Health (MoH) pursuant to this statutory imperative has a comprehensive medical records policy i.e. Ministry of Health Medical Records Policy, 2017 which is the governing regulation on medical records management in the health sector in Ghana consistent with Article 11 of the 1992 Constitution for the generation, collection, storage and retrieval of patients’ information in all health facilities.
LEGAL FIREWALL
Medical records on anyone in Ghana in the eyes of the law is private and confidential simpliciter. To begin with, the right of a person to privacy is a fundamental human right guaranteed under Article 18 (2) of Ghana’s 1992 Constitution, thus:
“No person shall be subjected to interference with the privacy of his home, property, correspondence or communication excerpt in accordance with the law and as may be necessary in a free and democratic society…”
Further, Ghana’s Evidence Act,1975 (NRCD 323) accords professional privilege to information shared between a client and professionals like lawyers, doctors, accountants or bankers. This makes communication between patients and doctors privileged information and same is protected against disclosure even in court subject only to limited exceptions permitted by same Act.
In addition, Ghana’s Patient Charter i.e. Section 167 of Public Health Act 2012 (Act 853) provides statutory emphasis on the confidentiality of medical records in law in Ghana, thus:
“The patient is entitled to confidentiality of information obtained about the patient and that information shall not be disclosed to third party without the consent of the patient or the person entitled to act on the consent of the patient or the person entitled to act on behalf of the patient except where the information is required by law or is in the public interest”
Regarding Electronic Medical Records(EMR), Section 62 (a) of Ghana’s Data Protection Act 2012, (Act 843)provides specifically for its security and further protects same against unauthorized access, thus:
“Personal data on the following subjects shall not be disclosed except where the disclosure is required by law: (a) personal data which relates to the physical, mental health or mental condition of the data subject”
Lastly, Section 15(1)(b) of Ghana’s Right to Information Act 2019, (Act 989) lends additional statutory protection to the privacy of communication between a patient and his/her physician by exempting same from unauthorized access by third parties.
EXCEPTIONS TO THE RULE
The privacy of medical records in Ghana in law is settled. Accordingly, a third party may only access a patient’s medical record subject to the patient’s prior written consent.
Where the patient in question is incapable of consenting by reason of being a minor, of unsound mind, unconscious or deceased, then either the parent or legal guardian in the case of a minor or the next of kin as stated in the medical records or as legally admissible in the case of an adult may consent on behalf of the patient.
Nevertheless, it is possible for third parties under very exceptional circumstances to legally access patients’ medical records without their prior consent.
These limited circumstances are set out in Section 5.3(e) of Ministry of Health Medical Records Policy, 2017, thus:
i. Where a court orders the record to be handed over to the third party.
ii. Where the facility is being sued by a patient and needs access to the record to mount a defense.
iii. Where the third party is a facility employee who has had disciplinary proceedings instituted against him/her and requires access to the record to defend him/herself.
iv. Where the facility employee is under a statutory obligation to disclose certain medical facts reporting a case of suspected child abuse Act, 1998 (ACT 560).
v. Where the non-disclosure of the medical information about the patient will present/pose a serious threat to public health.
‘OPEN SESAME’: PATIENTS RIGHT TO DISCLOSURE
The right to information in Ghana is a fundamental human right guaranteed under 1992 Constitution per Article 21(f) subject to qualifications and laws as are necessary in a democratic society. This constitutional right is what anchors the right of patients to disclosure of their own medical records in the custody of their health providers.
Patients indeed, have inalienable right to disclosure of their own information in Ghana. This was affirmed by the High Court in the celebrated cases Elisabeth Vaah v Lister Hospital and Fertility Center (Suit No. HRCM 69/10) and Jehu Appiah v Nyaho Healthcare Limited [2021].
Per the facts of both cases, the defendant hospitals declined to release the medical records in their custody to the plaintiffs who were their patients and had requested for same. The plaintiffs therefore felt compelled to invoke the High Court’s jurisdiction pursuant to Article 33(1) of the 1992 Constitution to vindicate their constitutional right to information. Article 33 of the Constitution designates the High Court as the proper forum for redress with respect to fundamental human right abuses such as denial of access to one’s own medical information.
The High Court in both cases held that patients are as of right entitled to access their own medical information in the custody of healthcare providers subject only to such qualifications and laws as are necessary in a democracy like Ghana.
The defendant hospitals contended that the plaintiffs had evinced by their conduct an intention to sue them and were thus demanding their medical records in pursuit of same. The Court held that such grounds do not fall within the meaning and scope of qualifications intended by the Constitution for limiting access to information in a democracy.
It is accordingly submitted that, patients who threaten legal action are very much entitled – as of right – to access their medical records and that internal rules and practices of health facilities (bureaucracy) however sound or expedient are inadequate grounds to refuse disclosure relative to the constitutional right to information pursuant to Article 21 (f) of the 1992 Constitution.
Instead, Section 27(1) of the Right to Information Act, 2019 (Act 989) – a legislation passed specifically to provide for the implementation of the constitutional right to information held by public bodies provides two legal grounds upon which institutions including hospitals may refuse access:
- Where the application is manifestly frivolous or vexations; or
- Where the information being requested is an exempt information.
PENALTY FOR BREACH OF PRIVACY
It is a criminal offence in Ghana for anyone –natural or juristic person- to access or disclose the medical records of another without their consent per Section 85(3) of the Data Protection Act, 2012, thus:
“a person who knowingly or recklessly discloses information in contravention of subsection (1) commits an offence and is liable on summary conviction to a fine of not more than two thousand five hundred penalty units or to a term of imprisonment of not more than five years or to both.”
Regarding electronic medical records, Section 124 of Ghana’s Electronic Transaction Act, (Act 772) provides the particulars of the offence and the penalty, thus:
“A person who intentionally accesses or intercepts an electronic record without authority or permission commits an offence and is liable onmsummary conviction to a fine of not more than two thousand five hundred penalty units or to a term of imprisonment of not more than five years or to both.”
CONCLUSION
Going back to the story told at the outset, the hospital in question was wrong in law to refuse the patient access to her own medical record upon requesting for same. The decline by the hospital constitutes a breach of her constitutional right to information per Article 21 (f) of the 1992 Constitution. She may apply to the High court under Article 33 (1) for the appropriate orders to quash the decision of the hospital and to release her medical records.
In the result, the vexed question as to who owns patients’ medical records is resolved by Section 5.4(a) of the Ministry of Health Medical Record Policy, 2017; viz: “medical record is the property of the health facility maintained for the benefit of the patient.” In other words, the hospital has legal ownership over medical records that the patient beneficially owns.
BY ISAAC GYEABOUR OFORI, ESQ
President & Founder @ Patient Rights Watch Ghana