Patients’ Access to Medical Records: Is It a Privilege or a Substantive Right?

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.