There is no doubt that COVID-19 pandemic is a global threat. It’s such a drastic threat to humanity that it has claimed over 1. 9 million ( as at April 23, 2020).

It effect is so devastating to the extent that Emergency Committee of World Health Organisation (WHO), after complying with the provisions of article 12 of International Health Regulations (IHR), declared the pandemic as COVID-19. That declaration was made in consultation with the International Committee on Taxonomy of Virus (ICTV). The acronym COVID, stands for Corona Virus Disease, while the number 19, stands for the the year 2019; refering to the year the disease was discovered.

The essence of this writing is to examine the general concept of medical confidentiality under Nigeria’s law as well as the exceptions thereto. It is the examination of these exceptions that will justify the circumstances under which medical confidentiality can be breached. In doing so, COVID-19 is the central medical case for examination . However,instance like psychiatric cases will also be referred to.

THE GIST OF THE MATTER

Generally, the law accords medical confidentiality to a patient or a client who is undergoing treatment or counseling session with a health practitioner. This right stems from the constitutional rights of privacy and personal liberty of a citizen spelt out in section 37 and 36 of the 1999 Constitution (2010 as amended). These constitutional provisions provide the legal basis of confidentiality and autonomy in medical law. The only exception under to the rights of confidentiality and autonomy of patient is where such non closure will posed a risk to others.

Apart from the 1999 Constitution, there are other specific legislations that compliment the rights of medical confidentiality in Nigeria. Some of these principal legislations include the National Health Act and the Code of Medical Ethics,2008. While at the international level, these laws include, the Hipocratic Oaths , WMA International Code of Medical Ethics, 2006 and the Lisbon Declarations of the Rights of Patients (1981) which was currently re-adopted by World Medical Association (WMA) at the 2005. These are some of the ‘soft laws’ that address medical confidentiality in Nigeria.

The municipal reflection of medical confidentiality in Nigeria is seen in sections 26 (1) and 27 of the National Health Act,2014 . This act provides provides for the right of medical confidentiality of a patient or a client.
However, the rights in the above section is not absolute right, but a qualified right. It is a qualified right because there are other circumstances under which the right of confidentiality can be breached. These are based capture as exceptions to the general rule on medical confidentiality. These exceptions are spelt out under subsection 2 of section 26. The said subsection provides that:

Subject to the provision of section 27 of the Act, no person may disclose any information contemplated by Subsection (1) unless:

(a) the user consents to that disclosure in writing
(b) a court order or any law requires that disclosure
(c) in the case of minor, with the request of the guardian or parent
(d) in case of any person who is otherwise unable to grant consent upon the requests of guardian or representative
(e) non- disclosure of the information represents a serious threat to public health.

Flowing from the above statutes, it is apposite to state that disclosing name of COVID-19 patients can be in certain circumstances justifications. The first circumstance is where the patient consents to the disclosure. Secondly, where a court ordered for such disclosure or there is a law that provides for it. Thirdly, the consent of the minor or incompetent adults for disclosure permitted by their representatives. Fourthly, where there is risk posed by public safety.

However, in the current situation the world found itself, the categories of exceptions that will qualify to permit the disclosure of the confidentiality of COVID-19 patients are : (a) where the order of court or written legislation permits it, and (b) where the disclosure will prevent public harm to others.

With regards to subsection (b) of section 26 of the National Health Act, 2014, the law provides for a situations under which the confidentiality of a COVID-19 patient can be disclosed. This is because the proviso empowers the court to order for the disclosure of confidentiality of a patient where circuit warrants so. However, it is apparent that the Act does not specify circumstances under which the identity of a patient could be disclosed by the court; it is public policy and public interest that will guide the discretion of the court in granting such orders. Therefore, where they exist patient who has a severe communicable disease that has the potential of causing risk to others, the court may, grant such orders divulging his confidentiality when called upon to do so by appropriate authorities.

On the second limb of this exception. The law provides that where any statutes specifically provides for disclosure of medical confidentiality, such disclosure will be valid in the eyes of the law. Incidentally some of the laws that regulate disclosure of confidentiality are section 26(2) (e) National Health Act, 2014 and section 22(3) of the Statistics Act, 2007 CAP S 10 LFN,2004.

Under the National Health Act,2014, section 26(b) provides for the disclosure of confidentiality.
These statutory authority will apply where, COVID-19 patients escaped quarantine and got diffused in the public. In this circumstance, the identity of this person’s can be divulged in other save others. Where such persons is apprehended and will be prosecuted, his name must be disclosed before the court of law. It is in this line that section 22(3) of Statistics Act, 2007 provides that confidentiality of an individual can be breached where he is to be prosecuted for any unlawfull act.

Also, disclosure in the interest of public health is another important exception to the privacy of COVID-19 patient. This is because it accords with the principle of no harm in health law. Today global communities are attributing the origin of COVID-19 to China because it failed to disclose certain information to WHO on time. The essence of disclosure is to forewarn the public not to come into contact with any infected person. This appears to be necessary with states who are having the first index case. This sometimes put the public on red alert and to be more sensitive to the reality of Covid 19. It also help them to avoid superstitious plus reckless attitudes that COVID-19 is unreal and that ” it is big men disease”. this is because as the saying goes “once your neighbor house catches fire, there is limited time to inquire what causes the conflagration.” Intuition and instinct natural tells ones what do in such circumstances.

Furthermore, the Code of Medical Ethic, 2008 provides for confidentiality of patients. Under Section 44, the Code provides that doctors should do anything professionally competent to preserve the confidentiality of their patients. However, Rule F under section 44 of the said Code of Ethics, 2008 provides for ” discretionary breach of confidentiality to protect the patient and the community” community from imminent danger. Therefore, where a COVID-19 patient escaped from population into the densely populated area, declaring his identity will be of immense help in protecting the public from danger. In medical law where the privacy of individuals is likely to impact negatively on the public such privacy will be breached in public interest. See the cases of W.V Egdell (1984) 2 ALL ER 417 ( CA) and R V Crozier (1990) 1 ALL ER 649.

Also, the Code of ethics governing medical laboratory scientists in Nigeria has a rigid legal regime in protection of medical confidentiality. This is because it didn’t envisaged public health as a ground upon which medical confidentiality can be breach. Section 22 of the Rules of Professional Conduct of Medical Laboratory scientists ,2018 enjoined all Lab Scientists to uphold confidentiality of their Clients or patients. Subsection 3 of section 22 only provides for the consent of the patient, prevention of the patient from committing crime, request by court order and prevention of to the scientists the only exception for divulging the confidentiality of a patient.

With regards to COVID-19, since the law governing medical laboratory science does not include ” public health” as ground for breaching medical confidentiality. The only circumstances permissible for divulging patients privacy is where he commits crime like, COVID-19 patients who, evade quarantine.

Also, the medical confidentiality of the patient can be disclosed in order to protect even his family members from infection. The security of a family of a COVID-19 patient is is another reason where medical confidentiality may be breached. Where the progenitors of a particular family have a history of a particular disease it will be in the interest of the family. This will be necessary before contracting any valid contract. See section 5 a,b, c and d of the Matrimonial Causes Act.
No case brings to mind disclosure of confidentiality for the protection of family and society like that of Atiku Abubakar’s family. When the one of the members of that noble family contracted COVID-19, the family promptly inform the COVID-19 Taskforce who swung into action to curb the menace. The act of this family is a gesture worth emulating.

CONCLUSION

In conclusion, the strength of the law does not lie on the abundance of the general provision that provides for a particular right. Those rights are equally tested by the proviso or the exceptions that fall under the general provision. Therefore,it is only when an act falls squarely within both the general provisions and the exceptions therein that the question of liability will arise. It is in such case that justice will be dispensed in favour of the aggrieved party and punishment will be meted against the erring party.

With respect to the rights of confidentiality of COVID-19 patients, the position of this writer is that while the medical confidentiality of patients is a private right, it is still subject to public safety, public health and public morality as seen in this work. Therefore, in line with the current trend of COVID-19, it is important that more emphasis should be laid on the compelling public interest. More attention should be given to public health rights than personal rights of individuals.

On the victims of COVID-19, it is the opinion of writer that these survivors should be celebrated with honours. This will reduce the stigmatisation and stereotyping of the patients of the pandemic. It is not easy to survive COVID-19.

In addition to the above, special fund from the ‘myriad’ of COVID-19 largese should be allocated to the survivors of this pandemic. It will appeal to both the psychological and economic hardship that comes with the effect of the pandemic.

Also, on the moral appeal, it is the opinion of this writer that those convicted of COVID-19 should be granted amnesty in due course. This will serve as their post COVID-19 palliative.

Lastly, on lighter mood, for the recalcitrant law breakers of shutdown orders, the punishment should be extended to include compulsory test in Lab to determine whether or not they are not spreading the virus deliberately. Psychological measures like disease with put Nigerians on check. For when it is said “don’t urinate here” that’s an invitation for people to urinate in Nigeria. But when it is said “we need human urine” that’s when they will be compliance.

Name: Godfree Matthew Esq
Office: Pwajok, Ikowe & CO. No. 28 Ahmadu Bello Way, Jos.
Email:[email protected]