CONFIDENTIALITY OF PATIENT’S DATA IN THE COVID-19 PANDEMIC CONDITION

Patient’s data is private data and become privacy that protected by State, in this context underlying under Preamble of the 1945 Indonesia’s Constitution that stipulates national purpose to protect all of the whole Indonesian nation and blood, one of them through protection of citizen rights especially protection of human rights. It was emphasized in the Article 28G Paragraph (1) of the 1945 Indonesia’s Constitution that everyone is entitled to protection of self, his family, honor, dignity, their own properties, and has the right to feel secure and to be protected against threats from fear to do or not to do something that is part of basic rights” and Article 28 H Paragraph (4) that regulates everyone has the right to own private property and such ownership shall not be appropriated arbitrarily by whomsoever. These two articles were embodied by Law Number 29 of 2004 concerning Medical Practice, Law Number 36 of 2009 concerning Health, Law Number 44 of 2009 concerning Hospital, and Law Number 36 of 2014 concerning Health Workers.

Article 32 sub (i) of Hospital Law regulates that every patient has illness privacy and confidentiality rights including their medical data. This arrangement was in line with Article 36 of Health Law that regulates everyone has rights to their personal health condition secret which has been disclosed to health service providers”. Article 47 Paragraph (1) and (2) of Medical Practice Law regulates that the contents of medical record are the patient property and shall to be kept its confidential by a doctor or dentist and head of health service facilities. These three Laws in particular based on regulatory object is in the form of medical records. Medical records was defined as patient data that contained in a written record containing documents related to the patient’s identity, examination, treatment, actions and services provided by the patient under Article 1 Paragraph (1) Minister of Health Regulation Number 269/Menkes/PER/III/2008 concerning Medical Records.

The 2008 Medical Records Regulations has differences than previous Minister of Health Regulations. The 1989 Medical Records Regulations stipulates that medical records are confidential permanently, however, the 2008 Medical Records Regulations arranged that medical records more flexible and it does not confidential permanently. Although it is very clear that patient data is confidential, strict, limited, and shall to protected, this patient data can be disclosed with the patient’s consent or disclosed under applicable law. However, in one condition, this patient data may need to be disclosed, so the law regulates several things that allow patient data to be disclosed. First, Article 57 Paragraph (2) Health Law regulates that personal patient data may be disclosed under a) statutory order; b) court order; c) the license concerned; d) public interest or e) interest of person concerned. Second, Article 48 Paragraph (2) Medical Practice Law also states that medical secrets can only be disclosed for the benefit of patient health, fulfilling requests from law enforcement officials, patient requests or based on statutory provisions. Third, Article 9 Paragraph (4) letter (b) Medical Records Regulation emphasized that in framework of public interest, the disclosure of medical secrets can be carried out if one of them is a threat of an extraordinary event or an outbreak of an infectious disease. It means that there are exceptions to limited matters regulated by law.

Recently, Covid-19 positive confirmed patient reached 93 million people in the world and especially in Indonesia reaching 927.380 people. In 11 March 2020, the World Health Organization has been announced pandemic condition over 2019-n-CoV or well known as Covid-19. Based on this announcement, the requirement of “public interest” can be used as a legal basis for disclosing patient data as important information for contact tracing in order to cut the eye of the spread of Covid-19. It was emphasized by the Political and Security Affairs Coordinating Minister, Mohammad Mahfud MD., in a press conference at Media Center for the Covid-19 Task Force, Graha BNPB, Jakarta by online format. He stated that the pandemic is a special condition and referring to the argument of lex specialis derogate legi generalis, the special law will override the general law. In this case, the confidentiality of patient data can be overridden under the Medical Pracie Law and outbreaks of infectious disease so that individual patient data can be disclosed for certain reasons. (https://www.beritasatu.com/kesehatan/704073/mahfud-sebut-kerahasiaan-data-pasien-dikesampingkan-di-masa-pandemi)

Patient data is not used to label patient’s position, therefore, the disclosure of public information can be observed from two points of view, on the one hand, it provides privacy rights protection that have an impact on the safety of patients, their families and their surrounding people from social isolation. Another point of view, this disclosure is the right of the public to access information which has implications for the interests of many people where transparent information is needed, especially regarding Covid-19 spread, which is very fast transmission. The current pandemic condition is more of a broader interest, namely being able to find out the dynamics of the Covid-19 spread. It shall limits to avoid discrimination and social isolation because patient data is very sensitive which requires management with careful consideration factors. Patient data collected with patient consent is only used in a limited manner in the context of the Covid-19 countermeasures.