Thesis I | Atty.

Jill Lopez
April Joy Guiang
October 18, 2016
Thesis Statement: There is a need for a legal framework that harmonizes the Philippine Medical Act of
1959; the Data Privacy Act of 2012 and its Implementing Rules and Regulations; and jurisprudence
relating to right to privacy in order to fill the gap that results from the lack of a law that protects the right
to informational privacy in telemedicine.
THESIS OUTLINE
Right to Informational Privacy in Telemedicine
I.

II.

How privacy issues arise in telemedicine practice

A. How telemedicine works in the Philippines, including the process of medical consultation
and treatment, flow of individual information, roles of referring doctor and telemedicine
doctor, advantages, and disadvantages, such as privacy issues
Maria Margarita D.G. Mallari, THE TELEDOCTOR IS IN: The legal implications of
telemedicine on the Philippine medical malpractice system, Ateneo Law School Thesis (2005)
PREGINET, PH healthcare facilities shift gears to telemedicine through PREGINET, available at
http://pregi.net/uncategorized/ph-healthcare-facilities-shift-gears-to-telemedicine-throughpreginet/
Carl Antonio, et al., Health Information Privacy in the Philippines: Trends and Challenges in
Policy and Practice Privacy in the Developing WorldPhilippines Monograph Series
Gilbert Eric de Leon, Telemedicine in Texas: Solving problems of licensure, privacy and
reimbursement, 34 St. Marys Law Journal 651 (2003)
Rajesh Sivaswamy & Jidesh Kumar, Doctors on the Internet - Legal and practical implications.
12 Eubios Journal of Asian and International Bioethics 185-8 (2002)
Joseph Blum, J.D., M.H.S., Internet medicine and the evolving status of the physician-patient
relationship, 24 The Journal of Legal Medicine 413 (2003)
Judith F. Darr & Spencer Koerner, Telemedicine: Legal and practical implications, 19 Whittier
Law Review 3 (1997)
Phyllis F. Granade & Jay H. Sander, M.D., Implementing telemedicine nationwide: Analyzing the
legal issues, 63 Defense Counsel Journal 67 (1996)
B. Informational privacy issues in light of the implementation of the Philippine Health
Information Exchange (PHIE), a platform that integrates health data from different health
facilities providing telemedicine and allows the sharing of such data to other participating
health care providers
National Telehealth Center, UPM experts convene on next steps for Telemedicine, available at
https://telehealth.ph/2015/02/13/upm-experts-convene-on-next-steps-of-telemedicine/
Joint Administrative Order 2016-0001, Implementation of the Philippine Health Information
Exchange, issued by the Department of Health, Department of Science and Technology, and
Philippine Health Insurance Corporation
Right to informational privacy generally protected, though not as stringent, by the 1987
Constitution, the Civil Code, Revised Penal Code, special laws, and jurisprudence even prior
to the promulgation of the Data Privacy Act

A.
B.
C.
D.
III.

A. Inviolability of the right to privacy of communication and correspondence, subject to

few exceptions, i.e. upon lawful order of the court, or when public safety or order
requires otherwise as prescribed by law
Section 3, paragraph 1, Article III, 1987 Philippine Constitution
Zulueta v. Court of Appeals, 253 SCRA 699, February 20, 1996
Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary,
1996 edition
B. Right to privacy in 1987 Constitution not meant to be invoked against acts of private
individuals, as it is directed only against the government; Criminal and civil liabilities as
a consequence of violations of right to privacy committed by private individuals and
public officers
People v. Marti, 193 SCRA 57, January 18, 1991
Waterous Drug Corporation v. National Labor Relations Commission, 280 SCRA 735, October
16, 1997
Articles 19, 20, 21, 26, 32, and 2176 of the New Civil Code
Articles 228, 229, 230, 290, and 291 of the Revised Penal Code
C. Right to privacy in relation to the healthcare system protected by special laws
Section 24, The Medical Act of 1959
Section 2(b)(1), 30, 31, and 33, Philippine AIDS Prevention and Control Act of 1998
Section 36, 40, 60, and 61, Comprehensive Dangerous Drugs Act of 2002
Section 44, Anti-Violence Against Women and Their Children Act of 2004
No existing law that specifically regulates the practice of telemedicine in the Philippines but
standards provided under the Philippine Medical Act of 1959 applies perforce to
telemedicine, by virtue of statutory construction principles
A. Bills previously proposed to regulate telemedicine practice in the Philippines, including
the protection of right to privacy
National Telehealth Center, Telehealth Bill to Regulate Practice, available at
https://telehealth.ph/2012/06/21/telehealth-bill-to-regulate-practice-in-ph/
House Bill 6336, National Telehealth Service Act of 2009
House Bill 4149, The Telehealth Act of 2014
B. Application of statutory construction principles to the phrase defining acts constituting
practice of medicine, i.e., any other means of communication, either offer or undertake
by any means or method to diagnose, treat, operate or prescribe any remedy for any
human disease, injury, deformity, physical, mental or physical condition
Section 10, Philippine Medical Act of 1959
Mustang Lumber Inc. v. Court of Appeals
Statutory construction (verba legis)
Ruben F. Agpalo, Statutory Construction, 2003 edition
C. Applicability of the rule on patient-physician privileged communication to telemedicine
doctors as an effect of such construction
Section 24, Rule 130, Rules of Court
Lim v. Court of Appeals, G.R. No. 91114, September 25, 1992
Krohn v. Court of Appeals, G.R. No. 108854, June 14, 1994
Section 23, Implementing Rules and Regulations of the Data Privacy Act of 2012
D. Applicability of Data Privacy Act to information gathered in telemedicine practice
Section 4, Data Privacy Act
Statutory construction

IV.

V.

E. Status of the special laws which protect the right to privacy in relation to the healthcare
system in light of the promulgation of the Data Privacy Act (implied repeal?)
Section 44, Data Privacy Act
Ruben F. Agpalo, Statutory Construction, 2003 edition
Harmonizing the Data Privacy Act and jurisprudential guidelines relating to right to
informational privacy in telemedicine
A. Jurisprudential guidelines
1. Concept of informational privacy as a product of the evolution of the concept of
privacy as influenced by technological advancements
Chief Justice Reynato S. Punos speech, The Common Right to Privacy,
available at http://sc.judiciary.gov.ph/speech/03-12-08-speech.pdf), cited
in Vivares v. St. Theresa's College, G.R. No. 202666, September 29,
2014
2. Forces of a technological age industrialization, urbanization, and
organization as factors which operate to narrow the area of privacy and
facilitate intrusion into it
Morfe v. Mutuc, 22 SCRA 424, January 31, 1968
3. Right to privacy not intended to stifle scientific and technological advancements
that enhance public service and the common good; merely requires that the law
be narrowly focused and a compelling State interest (or legitimate and
overriding State interest) justify such intrusion
Ople v. Torres, 293 SCRA 141, July 23, 1998
Justice Reyes concurring and dissenting opinion, Imbong v. Ochoa, G.R.
No. 204819, April 8, 2014
4. Any law or administrative order that invades individual privacy subject to the
strict scrutiny of the Supreme Court
Ople v. Torres, 293 SCRA 141, July 23, 1998
White Light Corporation v. City of Manila, 576 SCRA 416, January 20,
2009
B. Guidelines provided by the Data Privacy Act
1. Personal information about a persons health considered as sensitive personal
information
Section 3 (l), Data Privacy Act of 2012
2. Processing of sensitive personal information prohibited as general rule, subject to
exceptions expressly provided for in the law
Section 13, Data Privacy Act of 2012
3. Processing of sensitive personal information allowed when necessary for
purposes of medical treatment, is carried out by a medical practitioner or a
medical treatment institution, and an adequate level of protection of personal
information is ensured
Section 13 (e), Data Privacy Act of 2012
By statutory construction, this covers information collected, stored, and
processed in the practice of telemedicine.
Proposed framework for the applicable standards in the protection of right to informational
privacy in telemedicine: jurisprudential guideline alone, Data Privacy Act alone, or the
combination of the two

A. Need to comply with the compelling State interest test to justify reasonable intrusions to
right to privacy versus the less stringent standard provided by law in the Data Privacy
Act, i.e. an adequate level of protection of personal information:
1. Jurisprudential guidelines apply to government (i.e., in the course of
promulgation of laws and administrative orders that affect the exercise of the
right to informational privacy);
2. Guidelines in Section 13 (e) of the Data Privacy Act applies to medical
practitioners or medical treatment institutions, public or private (i.e., in the
course of collecting, storing, and processing individual health information)
Ople v. Torres, 293 SCRA 141, July 23, 1998
Section 13 (e), Data Privacy Act of 2012
Section 17 to 22, Implementing Rules and Regulations of the Data
Privacy Act of 2012
B. Application of the framework in evaluating the validity/constitutionality of the
administrative order mandating the implementation of the PHIE, where personal
information about an individuals health is made available for sharing not only to the
attending doctors and telemedicine doctors of a patient but also to all other participating
health care providers, subject to certain conditions
1. Elimination of constraints in the access to real time information for medical
decision making and access to health services as the State interest advanced by
the administrative order: Compelling or not?
2. Transparency, legitimate purpose, and proportionality: Present or not?
3. Compliance with the principles in data sharing as provided for in Section 20,
Implementing Rules and Regulations of the Data Privacy Act of 2012: Present or
not?
Joint Administrative Order 2016-0001, Implementation of the Philippine
Health Information Exchange, issued by the Department of Health,
Department of Science and Technology, and Philippine Health Insurance
Corporation