The following is a translation of an article by Adv. Avner Pinchuk, from the Association for Civil Rights in Israel (ACRI), in which he reviews the recent detailed and public updates regarding the Prime Minister’s state of health. Adv. Avner Pinchuk examines existing and potential legislation as it pertains to the preservation of the public’s right to know, and the right of an individual’s to privacy or medical confidentiality.
During recent weeks, while the Prime Minister has been fighting for his life, the public has been provided with a great deal of detailed information regarding his state of health, including updates on every small bodily movement, reactions to pain, and various tests that were carried out on him. Prior to which, as a result of the slight stroke that Mr. Sharon suffered recently, an extensive public debate began on the subject of Mr. Sharon’s health. Details such as the level of cholesterol and the Prime Minister’s blood pressure were leaked or transmitted to the media, and was followed, ultimately, by a press conference during which Sharon’s physicians revealed details of his medical file. In retrospect, however, despite the appearance of absolute transparency, the public was not provided with the relevant and important details that would be most likely to indicate whether or not the Prime Minister’s will be fit to resume his previous position in the future.
Events such as these raise the question of what is the most effective means to ensure a balance between the public’s right to know, and the right to privacy and medical confidentiality, and whether the time has come to determine clear procedural regulations regarding this issue.
Every person, “even” if he/she is the Prime Minister, has the right to privacy. The right to privacy law defines medical information as “sensitive information”, a definition that does indeed reflect the extreme sensitivity that people exhibit in relation to the exposure of medical information that pertains to them. A person’s right to medical confidentiality is protected by the Patient’s Rights Law, by the Hippocratic Oath and in general, by the medical ethical code.
However, in the case of public figures in key positions, or for those wishing to be elected or appointed to such posts, their medical history, which is liable to impact on their modus operandi, is certainly relevant. In such cases the right to privacy diminishes in relation to the importance of the public’s right to know. A democratic country must provide the residents with the necessary information regarding the physical and intellectual fitness of an individual asking for their trust, or wishing to hold a sensitive post. An individual who wishes to compete for a senior position, must accept the fact that he/she will be required to expose sensitive personal details that a private citizen is entitled to conceal, and that under different circumstances would be considered to be an illegitimate invasion of privacy.
One is still left, however, with the question of what constitutes relevant information that can be legitimately made public. Currently, there is no arrangement stipulating what information must be made public or how it should be publicized. On the one hand, not all the details in a public figure’s medical file relate to his/her fitness to carry out a specific role. Commonplace and trivial illnesses such as, flat footedness, or localized passing infections or conditions, do not provide us with any substantive information regarding the individual`s ability to fulfill a specific role, especially in the absence of an overall assessment requiring professional expertise. However, on the other hand, without stipulated regulations, it has become apparent that it is precisely those details that are liable to influence the functioning of an individual in a senior or sensitive position, that are concealed from the public.
The clash between the right to privacy and the public’s right to know was highlighted by the Prime Minister’s hospitalization. It is easy to understand the public’s interest and concern for the well-being of the Prime Minister, but we must remember that we are talking about a person who is in hospital in a grave condition, who is no position to decide of his own free will what information should be released regarding his medical condition. In such a situation individuals undergo procedures that are liable to be humiliating in nature, but which do have a vague connection to their potential to function effectively in the future. However, it is not clear that the publication of every scrap of information relating to the Prime Minister condition, such as the reaction of individual limbs to different stimuli or the results of urine tests, could in no way be considered to be legitimately furthering the public`s right to information regarding a public figure`s ability to continue his/her prescribed role.
Even if one were to assume that the Prime Minister’s close relatives permitted the publication of certain details to quell public fears for his well-being, one should still question whether or not he would have wanted this level of exposure, and if anyone is authorized, at this point, to relinquish his privacy in his name.
Many of us are curious to know details that should remain private. However, even though, in the present case the issue is not only one of simple curiosity, but is combined with understandable anxiety and concern for the Prime Minister’s health, the level of detail cannot be said to be serving any legitimate public interest, and does not justify the intrusive invasion of his privacy and dignity. Even if he is a senior public figure who has held in the past, and may continue to do so in the future, a sensitive public position.
At this point, the Prime Minister is not holding any public post. Unfortunately, under the present circumstances he is becoming less and less of a public figure and more and more a private individual who is current lying in a hospital bed fighting for his life. If or when he returns to full fitness and wishes to resume his public role, that will be the time to assess his physical and intellectual fitness to continue his public duties. The present situation, despite the great and understandable public interest, should incline towards restraint and a reduction in the publication of intimate details that are liable to violate, for no valid reason, the right to privacy and human dignity.
Clear and detailed legislation is required, that will anchor in law the public`s right to critical information in relation to elected public figures, and which will determine a standardized stipulation of which details can be made public and in what manner this should be done.
It is possible, for example, to obligate candidates or individuals holding key positions to make their full medical history available to a committee of independent experts, which will then periodically provide public documentation attesting to their medical fitness to continue their professional role. Such an arrangement is common practice in the United States. It is important to ensure that the aforementioned system will only protect the right to privacy for senior public figures, as it pertains to information which is of no genuine public interest, but that it also prevent the concealment of vital information from the public such as the life-threatening vascular disease that Ariel Sharon suffers from, which was already diagnosed during his previous hospitalization, which (as published in the media) was deliberately concealed from the public. An even more egregious fact is that the information`s concealment was carried out under the guise of full medical disclosure of the Prime Minister`s condition.
The balance between the public`s right to know and the Prime Minister’s right to privacy is a perfect example of the dilemma that arises in numerous other cases, between medical confidentiality and other interests. Private citizens, who do not hold any senior public position, are frequently required to waive their right to medical confidentiality.
There are numerous examples, both in the public and private sectors, of sensitive positions that require both physical and intellectual fitness of the individual fulfilling the position. Thus for example, it is prohibited for a doctor or nurse working in a hospital to be suffering from an infectious disease which could endanger the patients, just as it is prohibited for a registered pedophile to manage (in whatever capacity) a school, or to be responsible for a kindergarten.
However, in order to determine an individual’s fitness to take on a specific professional position, there is still no need to reveal his/her full medical history to the employer, something that frequently occurs. It is, for example, permissible to refer this same individual to a physician specializing in employment related issues, or to a committee of experts who will determine the individual’s level of physical and intellectual fitness without revealing unnecessary information.
Also in the case of private individuals, as in the case of the Prime Minister and other senior public figures, a formal legal procedure is required that will stipulate under what circumstances it is permissible for the public to demand that a person waive his/her medical confidentiality, to whom it may be transmitted, and that a procedural mechanism be implemented to ensure that the evaluation of an individual`s physical or intellectual fitness for a specific placement, does not include an exaggerated violation of their right to privacy.
last updated : 02/02/06
