The Constitutional Mandate for Judge-Made-Law and Judicial Activism: A Case Study of the Matter of Elizabeth Vaah v. Lister Hospital and Fertility Centre

The case of Elizabeth Vaah v. Lister Hospital and Fertility Centre presents many compelling ethical issues. These include the Physician-Patient relationship, ownership of Health Records and the fiduciary duties of the Physician to the patient. It also questions the pro-active approach of the Court in Ghana regarding the imposition of fiduciary duties on medical staff, and the remedies available for breach of such fiduciary duty. Lastly, it investigates whether judicial activism should be accepted as the inevitable consequence of the administration of justice in Ghana. We agree with the outcome of the Vaah case that Elizabeth Vaah is entitled to a copy of her medical record from Lister Hospital. We however disagree with the approach used in formulating the decision. The decision would open the floodgate for further litigation by patient’s counsel seeking patient records that may not even exist. The decision would place an additional burden on the already severely challenged healthcare delivery system in Ghana. This investigative study consisted of a literature and documentary review of case law, the 1992 Constitution of Ghana and other medico-legal writings from Ghana and other common-law jurisdictions on the issue of the production of patient records. An electronic internet search was conducted with carefully designed phrases like, “medical malpractice in Ghana”, “judicial activism”, “medical malpractice cases involving refusal to release medical records”, “patient request of medical records resulting in court cases”. The study revealed that the decision of the court was based on precedents that did not support the factual basis of Vaah v. Lister and may weaken Vaah v. Lister as a competent precedential case. It also showed that the national legal framework for the Physician-Patient relationship is weak. There is the lack of national legislation on the capture, storage and mining of health information. This presents a complicated adjudicatory framework for the enforcement of the law against the abuse of privacy and the right to patient’s health information. Therefore, the law on privacy and health information should be developed to enhance trust in the healthcare delivery system of Ghana.