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Opinions of Sunday, 23 October 2011

Columnist: Ata, Kofi

NPP’s Access to President Mills’ Health Records, Is it Legal?

Kofi Ata, Cambridge, UK

I was dumbfounded to read in the Ghanaian media that the main opposition party, National Patriotic Party (NPP) had accessed the health records of President Mills (see Herald and Ghanaweb of October 15, 2011). The news item as reported on Ghanaweb received one of the highest number of comments from readers and since then I have waited patiently in anticipation of the NPP as a party or the two officials named in the reports denying the story. Unfortunately, up to the time of writing, no one in Ghana has said anything about this matter, so I decided to analyse the action or claim by NPP through this article. I do so not to support the President or his party, the National Democratic Party (NDC), neither do I pretend to speak for the President nor am I against NPP. My sole objective as a human rights practitioner, is to contribute to the debate on respect for and protection of human rights in Ghana and to deepen democratic values. I am conscious of the fact that contemporary political discourse in Ghana has lost its objectivity, especially, when it comes to issues concerning leading members of the two main political parties, NDC and NPP. Bearing in mind the fundamentalists within the two parties have abdicated all senses of objectivity and constructive criticisms, I would not be surprised if some readers spew venom on me with their comments. Nonetheless, I will try my best to be objective, fair and firm.

Article 12 of the Universal Declaration of Human Rights and Article 17 (1) and (2) of the International Covenant on Civil and Political Rights state: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his reputation. Everyone has the right to the protection of the law against such interference or attacks”. Ghana is a signatory to the two International Laws. These rights are also guaranteed in Ghana’s 1992 Constitution as integral parts of fundamental human rights. Article 18 (2) of the Constitution states: “No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or economic well-being of the country, for the protection of health or morals, for prevention of disorder or crime or for the protection of the rights of freedoms of others”.

The question for NPP, (especially the two individuals who claimed that NPP had access to the President’s health records), Ghanaian legal luminaries and human rights institutions such as the Commission for Human Rights and Administrative Justice and the Ghana Bar Association is this: Isn’t the alleged action by NPP a clear breach of Article 18 (2) of the 1992 Constitution and a violation of President Mills’ human rights? Where in Article 18 (2) of the Constitution would NPP justify their action? Some people would assume that the public, that is, Ghanaians have the right to know the state of health of the President. That is correct but that right should be balanced against protecting the right of the individual’s privacy. The Ghanaian public have interest in the state of health of the President but do not necessarily need to know the details contained on health records in order to be assured that their President is in good or poor health and is capable of performing the duties of the office he has been elected. I am sure NPP would defend and justify their action by what is commonly known as the “public interest” and the right to information. However, public interest and the right to know are never a standalone but always qualified by a test in order to safeguard the right to privacy.
The subject of public interest against privacy is a contestable one that opposing sides take different and conflicting positions according to their peculiar interests. There is no single definition of privacy (legal or otherwise) but let me give a few. An Associate Justice on the US Supreme Court, Justice Louis Brandeis (1861-1941) articulated the concept of privacy as “the individual's right to be left alone” and Curzon’s Dictionary of Law defines privacy as “a boundary through which information does not flow from the person who possesses it to others”. On the other hand, Robert Ellis Smith, Editor of the Privacy Journal provided a wider definition as "the desire by each of us for physical space where we can be free of interruption, intrusion, embarrassment, or accountability and the attempt to control the time and manner of disclosures of personal information about ourselves" and the UK Committee on Privacy and Related Matters chaired by Sir David Calcutt (QC) concluded that, "nowhere have we found a wholly satisfactory statutory definition of privacy". However his committee was satisfied that it would be possible to define it legally and defined privacy as, “the right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information”.
What is public interest vis-à-vis the right to information and privacy? If there is no consensus on what constitutes privacy, what is public interest is even more contentious, depending on where one stands. Public interest simply means, that which serves the interest of the public or is for the common good. According to the Institute of Chartered Accountants of England and Wales, the meaning of ‘the public interest’ is often taken as self-evident. However that meaning is invariably context-driven and often far from self-evident. Proponents and opponents of a proposal can equally and vehemently argue that a particular proposal is, or is not ‘in the public interest’, often leading to confusion and cynicism about the application of the term. Within certain limits, people act in their own interests and others are aware of this. Someone seeking to justify that a particular action is in the public interest will face understandable suspicion that they might actually be acting in their own interests, using ‘the public interest’ as a smokescreen for external justification. Often and especially, politicians confuse “public interest” to mean something that might interest the public. The two are not the same because public interest also means the public have the right to know because above all, it must serve the principles of accountability, freedom of information and free speech in a democratic society.

Meeting the public interest test is a balancing act between the right to know and guaranteeing the privacy of the individual. If by breaching the right to privacy, (accessing the confidential health records of the President) would serve Ghana’s interest and ensure or even improve public accountability and protect freedom of speech in a democratic Ghana, then it would be in the public interest for NPP to do so. However, even if the public interest is met, there is another hurdle to overcome before the privacy of any individual could be breached. In most democratic societies, there are Freedom of Information and Data Protection Acts. Most Freedom of Information Acts exempt personal information such as health records and Data Protection Acts also safeguard the use and or misuse of personal data (both paper and electronic) on individuals. It is therefore highly unlikely that NPP would have met the public interest test to access the personal and confidential health records of the President, though Ghana is yet to enact Freedom of Information Act.

NPP or the two officials who claimed to have accessed the health records probably assumed that the President is a public figure and therefore no longer a person with the right to privacy. If that was their assumption, then they were totally wrong. The Presidency has its own legal identity different from the person who occupies the office. Prof John Evans Atta Mills is a private legal entity that can be and must be separated from the Presidency and is therefore due his right to privacy. In fact, from some contemporary human rights perspectives, in order to treat any individual with concern and respect, the individual must first be recognised as legal person. This recognition also accords him or her all the rights enshrined under the Universal Declaration of Human Rights, particularly the right to privacy which explicitly guarantees the capacity to realise personal vision of a life worthy of a human being. It is therefore necessary for the President’s public realm (the presidency) to be separated from his private sphere (private and family life).

From the above, and because personal health records are protected and exempted from the right to know and subject to public interest test, the appropriate route for NPP to have accessed the health records of the President was to follow due process. That is, first, to seek the permission of the President to obtain his personal health records. Should the President object to their request, then NPP would have gone to court to seek a court order to obtain the records. The court would have subjected the request to the public interest test against the right of the President’s rights to privacy and both NPP and the President would have had the opportunity to argue for and against the application. Since some matters are protected from disclosure on the ground of privilege, for example, professional confidence and personal health information and for this reason and the fact that the public interest would not have been met, I am sure the court would have refused to grant NPP’s application. Probably, that is why NPP resorted to illegal means to access the records. Having failed or refused to use due process but obtained the President’s health records without his knowledge and consent, NPP has committed an illegal act.

The reports also indicated that the President’s health records were obtained from University of Ghana, South Africa and the United States. I assume the unidentified institutions in South Africa and the US are healthcare providers. If the reports were accurate, then the three institutions have also breached the President’s right to privacy. In fact, the US has both Freedom of Information and Data Protection Acts. For example, the Privacy and Security Rules under the US Health Insurance Portability and Accountability Act, 1996 (HIPAA), protects individually identifiable health information and also specifies a series of administrative, physical, and technical safeguards for covered entities to use to assure the confidentiality, integrity, and availability of electronic protected health information. If it is true that NPP obtained the President’s health records from US, it would not have been obtained through appropriate but only illegal means. Even if the records were leaked or illegally sold to NPP by an unauthorised person, the health institution holding the President’s health records would still be held responsible and accountable for the breach of the President’s right to privacy. The same would be applicable to the institution in South Africa and University of Ghana, irrespective of whatever laws regarding this matter in those countries.

There is also the issue of breach of client confidentiality and the trust between the doctors and their client. All professionals have a duty of care to protect the privacy of their clients. Even if NPP obtained the health records through appropriate channels that would still not make it legal because of the information’s protected status. In my humble opinion, there is no justification whatsoever for NPP’s action. The NPP is full of legal experts and respected medical doctors. They should and ought to have known that obtaining the confidential and private health records of the President was wrong and illegal. There is no public interest to be served. What benefit would the records be to Ghanaians? Ghanaians need to know the state of health of their President but not details contained on his health records. This was in bad taste and should be condemned. In fact, it would not even serve the interest of NPP.

The silence by the authorities of University of Ghana that was mentioned as one of the sources where the President’s health records were accessed from, is very troubling. Are the university authorities unaware or just pretending not to be aware of the claim by the NPP? The university is one of the centres of legal expertise in Ghana and cannot and should not behave like the proverbial ostrich because if the university was complicit in this illegal act, it could have very serious consequences on their reputation as a leading academic institution.

I am aware that some NDC politicians are worst offenders when it comes to political insults and abuses, especially making unsubstantiated, defamatory and serious allegations against the NPP Presidential candidate and I condemn NDC as well. These still remain allegations and though they are also wrong, they are not illegal and not comparable to the illegality the NPP claims to have committed. The alleged action of the NPP and the two officials are morally reprehensible, legally bankrupt and could even be an own goal if the institutions in the US and South Africa investigate the claims and sue NPP for illegal action and bringing those institutions into disrepute. In any true democratic society, the two officials would have been forced to resign their positions and the police or the Information Commissioner would investigate their claims. Ghana’s democracy has a long way to go since it appears that anything and everything political is acceptable.

I have not commented on the information regarding the Vice-President because, that, in my view meets the public interest test. If the Vice-President is or was a womanizer with lots of children by different mothers, the Ghanaian public must know because that is relevant to public accountability. Ghanaians must know in case the children or mothers of these children would misuse their privilege family ties to amass wealth, break the law, evade tax or be given unfair advantage. A womanizer could also be a threat to national security and potentially susceptible to corruption. For these reasons, I agree with NPP for exposing such behaviour of the person occupying the high office of Vice-President, if that claim is true. I rest my case.

Kofi Ata, Cambridge, UK