TITLE:
Patients’ Access to Medical Records: Is It a Privilege or a Substantive Right?
AUTHORS:
Ishmael D. Norman, Margaret Kweku, Blandina M. Awiah, Fred N. Binka
KEYWORDS:
Patients Access, Medical Records, Privilege, Substantive Rights, Ghana
JOURNAL NAME:
Advances in Applied Sociology,
Vol.5 No.12,
December
4,
2015
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.