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2020 DIGILAW 783 (KER)

X v. S

2020-09-18

BECHU KURIAN THOMAS, S.V.BHATTI

body2020
JUDGMENT : Bechu Kurian Thomas, J. Can a party to a litigation seek production of the medical records of a stranger to the lis especially those relating to a person with alleged mental illness? Such a question has arisen for consideration in this case. 2. Petitioner is the holder of a degree in M.Tech with second rank in the University. She complains of an intrusion into her rights of privacy brought about on account of a court certificate issued by the Family Court, Pala, for producing medical records of treatment undergone by the petitioner and her mother in a hospital. 3. Petitioner's sister and her husband are respondents 1 and 2. They are litigants in a proceeding for divorce, pending as O.P.(Div.) No.584 of 2017 before the Family Court, Pala, initiated by the 2nd respondent. Petitioner is a stranger to the said proceedings. 4. Petitioner pleads that. recently, she came to know that her medical treatment records were handed over by the respective hospitals to the 2nd respondent for producing in O.P. (Div.) No.584 of 2017 of Family Court, Pala, on the basis of Ext.P5 Court Certificate issued by the said court. Petitioner apprehends that the treatment records are obtained to defame her family. Petitioner pleads that neither her mother nor herself are parties in the Family Court. Petitioner further pleads that her medical issues are unconnected with the issues arising in the divorce proceedings between her sister and her husband and also that such third party information are protected from disclosure by the principles of privacy, which has become a fundamental right under Article 21 of Constitution of India, unless she consents to its production. 5. Petitioner further contends that it had come to her knowledge that by Ext.P4 application dated 28.12.2018 filed as I.A. No.1353 of 2018, the 3rd respondent sought for a court certificate for production of medical treatment records of the petitioner and even that of her mother, undergone by them allegedly for their mental health issues. Thereafter, the Family Court by an endorsement on the said petition, allowed the application in one word as “Issue”. Ext.P5 is the order passed by the Family Court. At the time of filing this original petition, petitioner had produced only a typed copy of the aforesaid order, referring to it as an endorsement made by the court on the docket page of Ext.P4 application. Ext.P5 is the order passed by the Family Court. At the time of filing this original petition, petitioner had produced only a typed copy of the aforesaid order, referring to it as an endorsement made by the court on the docket page of Ext.P4 application. Subsequently, a certified copy of the order has been obtained and produced in this case as Ext.P5. The said order in I.A. No.1353 of 2018 dated 29.12.2018 reads as “Issue”. It is pointed out that on the basis of the aforesaid order, the hospitals referred to in the application had handed over the medical records of the petitioner and her mother to the 2nd respondent, who in turn produced the same before the Family Court. 6. When this case came up for admission before us, while issuing notice to the respondents, by our order dated 22.7.2020, we directed the Family Court, Pala to keep the medical record/report received, pursuant to Ext.P5, in a sealed cover in the safe custody of the Judicial Officer himself, without divulging the details to any person. 7. A counter affidavit has been filed by the 1st respondent-sister of the petitioner, stating that there are three cases pending before the Family Court between her and her husband and that the medical records of her sister and her mother are not relevant in the litigation between her and her husband. She further avers that the attempt of the 2nd respondent is to tarnish the image of the family by targeting her siblings and her mother, so as to compel her to agree for a divorce. 8. The 2nd respondent has filed a counter affidavit stating that one of the grounds for seeking divorce against the 1st respondent is her psychiatric problems and that the medical treatment records of the petitioner as well as her mother have relevance in the case, for the purpose of proving his contention that there is a hereditary psychiatric problem for his wife. He further pleads that his application for issuance of court certificate was not objected to by filing any counter affidavit and that it was in such an instance that the court issued the order in the form of an endorsement on the application for issuance of a Court Certificate. He further pleads that his application for issuance of court certificate was not objected to by filing any counter affidavit and that it was in such an instance that the court issued the order in the form of an endorsement on the application for issuance of a Court Certificate. He further states that the present attempt is only to delay the disposal of the litigation pending before the Family Court and that the medical records are intended only to prove the history of mental health issues in the family. He further pleads that since the medical records have already been produced before the Family Court, Pala, and as Ext.P5 has been complied with, the original petition itself has become infructuous. 9. We have heard Sri.Alex M.Scaria, learned counsel for the petitioner, Sri.Arun Paul Jacob, learned counsel for the 1st respondent and Sri.Joseph T.John, learned counsel for the 2nd respondent. 10. Sri.Alex M.Scaria, the learned counsel for petitioner, referring to the scope of privacy as expanded in Smt.Selvi and Others v. State of Karnataka [ (2010) 7 SCC 263 ] and Justice K.S.Puttaswamy (Retd.) and Another v. Union of India and Others [ (2017) 10 SCC 1 ] submitted that petitioner has a right to be let alone and that without her consent, her medical records cannot be handed over to another or even a Court of law, unless one is a party to the litigation. He also relies upon the decisions in Girish Ramachandra Deshpande v. Central Information Commissioner and Others [ (2013) 1 SCC 212 ], Peoples Union for Civil Liberties (PUCL) v. Union of India and Another [ (1997) 1 SCC 301 ] and Mr.'X' v. Hospital 'Z' [ (1998) 8 SCC 296 ] and submits that Family Court ought not have issued the certificate as applied for. The counsel for 1st respondent Sri.Arun Paul Jacob supported the petitioner and reiterated the contentions in the counter affidavit. 11. Sri.Joseph T.John, learned counsel for 2nd respondent beseeched this Court not to interfere with the impugned order for various reasons, primal of them being that production of the documents sought for are relevant to the fact in issue and also that 2nd respondent will be able to advance his cause only by production of the said documents. 11. Sri.Joseph T.John, learned counsel for 2nd respondent beseeched this Court not to interfere with the impugned order for various reasons, primal of them being that production of the documents sought for are relevant to the fact in issue and also that 2nd respondent will be able to advance his cause only by production of the said documents. He urged with vehemence that the documents are already produced before the Family Court and that based on the pleadings in the case, those documents are relevant. 12. At the outset itself, we wish to express our dissatisfaction about the nature of the impugned order. The impugned order is only one word as “Issue”. No order could have been more cryptic than the afore. Nothing is discernible from the impugned order as to the scope and meaning of that order. Reasons are non existing in the impugned order. Reason is the heartbeat of every conclusion. Without reason, an order becomes lifeless. Reason, however brief it may be, is the essence of every judicial order. It reflects application of mind. The mind of a Court of law is reflected through its reasoning. Sans reason, a judicial order will not pass the test of fairness and reasonableness. Recording of reasons for a decision is an essential attribute of a judicial and judicious disposal of an issue by a court. An order which does not contain reasons is no order in the eye of law and such an order requires to be set aside. Reference can profitably be made to the decisions in Rakesh Bhatnagar v. Union of India and Others [ (2014) 15 SCC 646 ], Union of India v. Ibrahim Uddin and Another [ (2012) 8 SCC 148 ], Raj Kishore Jha v. State of Bihar and Others [ (2003) 11 SCC 519 ]. 13. Even though, we would have normally set aside the order on the above referred reasoning alone and remanded the case for fresh consideration, we deem it fit to consider the question of law mentioned at the beginning of this judgment, since these questions may arise often and an authoritative pronouncement may be beneficial to the litigants and the courts of law. 14. Right to privacy has been elevated to the status of fundamental right under Article 21 as per the decision in Justice K.S.Puttaswamy (Retd.) and Another v. Union of India and Others (2017) 10 SCC 1 ). 14. Right to privacy has been elevated to the status of fundamental right under Article 21 as per the decision in Justice K.S.Puttaswamy (Retd.) and Another v. Union of India and Others (2017) 10 SCC 1 ). Even though the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country under Article 21, a matrimonial court has the power to order a person to undergo a medical test and such a direction will not be in violation of any right to personal liberty. It was observed in the decision in Sharda v. Dharmpal (2003) 4 SCC 493 ) that while exercising the power to order a medical test to be undergone by a person, the court should exercise restraint and there must be a strong prima facie case and sufficient material before court to pass such an order. 15. The Code of Medical Ethics formulated by the Indian Medical Council as per the provisions of Section 20A of the Indian Medical Council Act as amended in 1964 provides that a Doctor should not disclose the secrets of a patient, learnt in the exercise of his/her profession, except to a Court of law under orders of the presiding judge. The doctors duty to maintain secrecy of a patient has a correlative right vested in the patient that whatever has come to the knowledge of the Doctor shall not be divulged except under the orders of a Court of law. 16. Considering the aforesaid aspects, a Court of law, while deciding the question whether to direct production of medical records of a person, the normal yardsticks for ordering production of documents provided under Order 16 Rule 6 CPC cannot be applied. A consideration of a higher degree of care, caution and application of mind is essential. The general principle in the Code of Medical Ethics that secrecy must be maintained regarding a patient is given an exception in respect of orders for production of records by courts. When a court of law orders production of records relating to an individual, it cannot be regarded as an intrusion into the right to privacy of that individual for then it will fall under the expression “except by procedure established by law” of Article 21. Whether court will exercise such a power in a given set of facts or not is another question. Whether court will exercise such a power in a given set of facts or not is another question. When the power is exercised by a Court of law calling for medical records relevant to a case, the same cannot be regarded as an intrusion into the right to privacy. We hold that a court of law has the power to call for the medical records of an individual relevant to the case before it. 17. When the medical treatment rendered to a patient relates to mental health issues, the degree of care and caution stands on a still higher pedestal. The mental health issues of a person have always been looked upon by the people in general with certain amount of stigma attached to it. Even while advancement in medical research has revealed that any person can be afflicted with mental health issues, attitude towards persons with mental health issues remains alarmingly stigmatic. The outlook of society towards persons with mental health issues, discrimination meted out to them, the need for persons with mental illness to be treated like other persons with health problems and the environment around such persons to be made conducive to facilitate recovery, rehabilitation and full participation in society amongst other factors paved the way for the Mental Healthcare Act, 2017 (for brevity 'The Act') to be enacted. The new statute has brought in drastic changes to the entire approach towards mental illness and the approach towards persons with mental illness. 18. The Act makes provision conferring right to information upon the person with mental illness or his nominated representative. The right to be informed, covers aspects including the nature of illness, the proposed treatment plan, the side effects, etc. Section 23 of the Act deals with confidentiality rights of a person with mental illness in relation to his mental health, mental health care, treatment and physical health care. The said section reads as follows: 23. Right to confidentiality-(1) A person with mental illness shall have the right to confidentiality in respect of his mental health, mental healthcare, treatment and physical healthcare. The said section reads as follows: 23. Right to confidentiality-(1) A person with mental illness shall have the right to confidentiality in respect of his mental health, mental healthcare, treatment and physical healthcare. (2) All health professionals providing care or treatment to a person with mental illness shall have a duty to keep all such information confidential which has been obtained during care or treatment with the following exceptions, namely.- (a) release of information to the nominated representative to enable him to fulfill his duties under this Act; (b) release of information to other mental health professionals and other health professionals to enable them to provide care and treatment to the person with mental illness; (c) release of information if it is necessary to protect any other person from harm or violence; (d) only such information that is necessary to protect against the harm identified shall be released; (e) release only such information as is necessary to prevent threat to life; (f) release of information upon an order by concerned Board or the Central Authority or High Court or Supreme Court or any other statutory authority competent to do so; and (g) release of information in the interests of public safety and security. 19. A reading of the provision extracted above, indicates that a person with mental illness shall have the right to confidentiality in respect of treatment underwent by him. If in case the details of treatment are required to be divulged, the same shall have to fall within the seven exceptions mentioned in clause (a) to (g) of Section 23 and not any other. The exceptions are exhaustive in nature. Unless the release of treatment records come within the purview and scope of those exceptions, the records of treatment of a person with mental illness cannot be released by any health professional. 20. Family Courts having been created by the Family Courts Act of 1984. It is, no doubt a statutory authority. As a Court of law, in exercise of its powers under Order 16 Rule 6 of the CPC, certainly the Family Court is competent to order production of records relating to the treatment of a person with mental illness. 21. Even though the Family Courts are, as mentioned above, competent to order production of treatment records of a mentally ill patient, the same is to be exercised with extreme care and caution. 21. Even though the Family Courts are, as mentioned above, competent to order production of treatment records of a mentally ill patient, the same is to be exercised with extreme care and caution. The production of such records can be ordered only if the facts and circumstances of the case necessitates such production. Before ordering the production of treatment records of a mentally ill person, court must apply its mind judicially and ascertain whether the documents sought for have a material bearing on the case. If it is found that the documents relating to the treatment records of a mentally ill person has a material bearing on the case, the court must then consider whether non-production will cause prejudice to the person seeking production. If answers to both the aforesaid questions are in the affirmative only then will the court be justified in ordering production of treatment records of a mentally ill person. 22. Coming to the facts of the instant case, on perusing the affidavit supporting the application for issuance of Court Certificate for production of medical records of the petitioner and her mother, which is produced as Ext.P4 in this case, we find that the only averment justifying the claim for production of records is that 'it is highly necessary to verify the treatment records of those persons from the year 2005 to 2015 for the fair disposal of the above case'. The aforesaid pleading, certainly cannot justify the production of treatment records of an alleged mentally ill person. There is no whisper even, as to how the document of a stranger to the litigation could be relevant or essential for the litigation. As long as the claim for production of records relating to the mental illness of a person is with respect to a stranger to a litigation, the same cannot have any bearing on the case pending between respondents 1 and 2. In such circumstances, we feel that the court below was not justified at all in ordering the production of medical records of the petitioner and her mother. 23. Viewed in the above perspective, we set aside Ext.P5 order in I.A. No.1353 of 2018 in O.P.(Div.) No.584 of 2017 on the files of the Family Court, Pala and dismiss the said application. 23. Viewed in the above perspective, we set aside Ext.P5 order in I.A. No.1353 of 2018 in O.P.(Div.) No.584 of 2017 on the files of the Family Court, Pala and dismiss the said application. The medical records/reports of the petitioner and her mother shall be returned to the petitioner and her mother as soon as applications are received in that regard. The original petition is allowed as above.