Blog By – Devanshu Tripathi
Introduction
Every global outbreak has its own positive and negative impacts on the society. Notwithstanding the fact that generally the negative impacts overpower the positive ones, but there is always a scope of improving through assessment of mistakes committed in the past. Similarly, the Covid-19 pandemic, despite affecting the world advertently, has also brought about a drastic revolution in the health Care system globally. Unlike before, the health care system has now started inclining towards the online medium, similar to a lot of other fields relying online. Initially, the health care system was majorly based upon practicality in terms of appointments and treatment of patients, while physical handling of personal data was mandatory. But this is contradictory to the current scenario. Post Covid, the importance of online medium came to the limelight emphasizing the need for increasing its penetration in health care system specifically ranging from booking appointments online to availing treatments instantly. This proved to be a step in the affirmative, owing to the nationwide lockdown in some countries, wherein acquiring medical treatment became near to impossible. In such scenario, the use of online medium, another great invention by mankind, has always proved to be beneficial. Patients could now share their medical reports to the concerned practitioner and avail treatment and prescriptions without being physically present. During, the Covid 19 outbreak, it became quite usual for people to start acquiring medical facilities online. Indeed, even doctors were highly delighted by such practice, influenced by the drastic scope of profit provided by this medium. But as already mentioned earlier, every action has both positive and negative impact on the society. Let us now delve deeper recognizing the social and legal aspects of the same.
Social and Legal Aspects of Increasing Penetration of Online Medium in Health Care System
While discussing about online health care system, the primary concern that crops up is data security. There arises a pile of questions regarding breach of privacy, threat to an individual’s personal data when authorizing private players to handle confidential information. The online medium despite being looked upon as a boon by the society, equally important is to recognize the concerns that it brings to the forefront. Article 21 of the Indian constitution provides for the fundamental right to life and personal liberty. This also includes the Right to privacy, as decided by the Supreme Court of India that Right to privacy forms a significant part of the Right to Life and Personal Liberty. Hence it becomes unequivocally important to safeguard the fundamental Right to privacy. Fundamental rights form an intrinsic part of the basic structure of the constitution, as already held under the Kesavananda Bharati Judgement, clearly reflects the significance of the Right to Privacy. While dealing with personal data, it becomes essential to recognize the right to privacy. Breaching this right would violate the basic structure of the constitution. Although the law provides serious repercussions to be faced for violation of fundamental rights, it has become slightly insignificant in the current scenario. Now a days, violation of fundamental rights has become more frequent than usual, wherein even the Supreme court, the so called guardian of the constitution, has ended up being a mere spectator. In the online heath care facility, while dealing with personal data, certain mandates are required to be abided by both, patient and the health care unit. These prerequisites are initiated by medical practitioners as a precaution against any legal intricacies that may arise during the course of treatment and in a bid to safeguard themselves from the same. While this is considered as an effective source of legal remedy, but the element of emergency can also not be disregarded. Considering the same scenario during Covid 19 outbreak, when the lives were at stake and being vigilant was of utmost importance, no one would bother reading a 5 paged prerequisite before actually initiating the treatment, especially during emergencies. Disgraceful is the fact that, medical practitioners considered this as an opportunity to persuade the patients for acquiring monetary benefits as well as evasion of confidential data for their personal benefits. While, patients although being literate enough to take wise decisions ended up manipulated by these health care units, recognizing the gravity of the situation in hand. Considering these aspects, do we have any legal remedies available for the same?
Solutions and Legal Compliances
Right to privacy, as provided by K.S Puttaswamy judgement, is a fundamental right enshrined under Article 21 of the constitution. Privacy includes all those personal confidential data which, if leaked, may lead to adverse consequences. Laws related to safeguarding data privacy gained more significance since the biggest breach of data privacy experienced by the Indian Council of Medical Research (ICMR) wherein the personal data of nearly 80 crore individuals was at stake. Ironically this was not the first and only privacy breach experienced. Earlier, there have been several more instances such as breach of data from AIIMS, COWIN health portal and Aarogya Setu app. This clearly portrays the failure on the part of government in handling of confidential sources. Finally, in a bid to avoid any further violation, the Digital Personal Data Protection act (DPDP) was passed which aims at protecting individual personal data. Earlier a draft for protecting data privacy, named – Digital Information Security in Health care Act (DISHA), 2018 was made available to public review and transitions. This act could have been a major turning point in India’s data privacy regime, but was not given enough recognition. DISHA provides for diverse legal remedies such as imposing penalties for breach of data, imprisonment for tampering with personal data and violating regulations, thereby also securing a fixed compensation varying on the basis of the gravity of breach. Although the constitution also provides for legal remedies that can be sought after the breach of privacy, majority of these laws are ineffective in the current scenario. This clearly highlights the instant requirement to initiate new laws, which could apply more stringently, without merely apologizing to the victims rather helping them avail justice and develop trust in the government.