This article is written by Gargi Nagpal of 4th Semester of Alliance University, Bengaluru
The NDA not only binds the parties to keep the confidential information private, but it also stipulates legal repercussions and penalties for any violation of the agreement, including injunction and attorney fees. When a dispute arises between the parties, they can contact their chosen alternative dispute resolution mechanism at any time, and the party who was wronged can sue for damages. The NDA also contains a number of clauses for safeguarding and maintaining the secrecy of confidential information, such as a predetermined NDA term that keeps the information secret even after the agreement has ended. The party who disclosed the confidential information has a right to get it back as soon as the agreement expires. The receiving party is also exempted in some circumstances from liability for disclosing confidential information. This research paper is aimed at highlighting those instances where non-disclosure of information may be justified especially in medical cases.
Keywords: Non-disclosure, Agreement, Secrecy, Confidential, Medical Situations
NDAs are typically entered into and signed between businesses, people, entities, employees, start-ups, big corporations looking to enter into new business ventures or joint ventures, small- and medium-sized businesses, etc. The Non-Mutual Agreement, which only the employee shall sign for the purpose of not disclosing the confidential information, is frequently required of employees. These NDAs safeguard private information, which frequently contains trade secrets. Because NDAs are legally binding, anyone who violates them is subject to consequences. The purpose of an NDA is to keep a party’s trade secrets private between them and to prevent them from being revealed to rivals or other parties who might use them unfairly and cause irreparable harm to the party disclosing them.
The following are a few key provisions that define an agreement as NDA:
• Contracting parties
The parties to the agreement must be identified in this clause, which must be stated at the beginning of the document. This will determine whether the agreement is unilateral or bilateral and how the rest of the clauses are written.
For further reference throughout the agreement, it is necessary to specify which party is disclosing and which party is the receiving party, for instance, if the parties are unilateral. Similar to this, it should be stated that both parties are the disclosing and receiving parties to the agreement if the parties to the agreement are bilateral.
• The entering and execution dates
Since the dates of the agreement’s execution and entry into force occasionally differ based on the parties’ understanding, it is crucial to draft this clause clearly to avoid any misunderstandings.
For instance, if Party A and Party B decided on June 10 to enter into an NDA for the fulfilment of a specific purpose, they would have agreed that the agreement would take effect on June 15 instead. The agreement should state that it was entered into on June 10 but that its effectiveness would begin on June 15.
• The reason for signing the NDA
The reason for entering into an NDA should be stated in the contract because the parties’ intentions must be understood by anyone reading it, preventing any misunderstandings about what the parties intend.
For instance, the agreement must state clearly that Party A and Party B are agreeing to purchase goods.
• Parties’ obligations and duties
This provision lists all of the parties’ responsibilities and obligations, whether mutually agreed upon or imposed by the disclosing party.
Standard exemptions and information that is exempt from confidentiality include some of the following:
• data that the receiving party has access to after it was disclosed in the public domain without violating this agreement;
• that the Receiving Party possesses as of the Effective Date of this Agreement, unless such possession results from the disclosure of such information by a Disclosing Party;
• authorized for public release with the Disclosing Party’s prior written consent in accordance with this Agreement;
• was created independently by the receiving party without using or referencing any confidential information;
• that the receiving party already possesses at the time of disclosure and is able to substantiate such prior possession;
• facts whose disclosure would uphold public morals or further the common good.
Although it is a significant ethical and legal obligation, confidentiality is not a given. Any of the following situations allows you to disclose personal information without violating confidentiality obligations.
• The patient gives their consent, either implicitly or formally, for their own care, for a local clinical audit, or formally for other purposes.
• The patient has expressly agreed to the disclosure of information for another use.
• The patient who lacks the capacity to consent will ultimately benefit from the disclosure.
• The disclosure has been authorized or permitted by a statutory procedure that suspends the common law duty of confidentiality, or it is required by law.
• The public interest can support the disclosure.
When revealing details about a patient, you have to:
• Utilize anonymized data if it is practical to do so and if it will accomplish the desired result.
• be happy to have the patient:
• is aware of their right to object and has ready access to information outlining how their personal information will be used for local clinical audit or their own care.
• Obtain the patient’s express consent before disclosing identifiable information if it’s going to be used for anything besides their own care or a local clinical audit, unless the law requires it or it can be justified as being in the public interest.
• Limit disclosures to the bare minimum required for the goal and observe all pertinent legal mandates, such as the common law and the data protection law.
When you are certain that information needs to be shared, you should take immediate action to share all pertinent information. You ought to document your choices and deeds. Unless it is impractical or would defeat the purpose of the disclosure—for instance, by jeopardizing the prevention, detection, or prosecution of serious crime—you should inform patients about disclosures you make that they would not reasonably expect, or confirm they have received information about such disclosures.
- Mr. X v. Hospital Z
Following several tests in the other hospitals, it was discovered that the plaintiff was HIV positive. The doctors of the hospital informed the other party to the marriage, i.e., the plaintiff’s fiancée, of his HIV (+) status, causing the plaintiff’s marriage to be annulled. The plaintiff asked the court to award damages against the hospital on the grounds that the information was supposed to be kept confidential by medical ethics, but it was illegally disclosed, which caused the couple’s engagement to be dissolved. The Supreme Court ruled that the timely disclosure of the crucial information that the petitioner was HIV (+) saved the woman with whom the plaintiff’s marriage was finalized. The Supreme Court ruled that when two fundamental rights conflict—in this case, the plaintiff’s right to privacy and his fiancee’s right to live a healthy life—the court will uphold the one that will advance public morality or the common good.
- Homag India Private Ltd. v. Mr. Ulfath Ali Khan & other
The plaintiff was an Indian affiliate of the multinational conglomerate Homaga group, and the company’s business was to supply machinery, factory installations, and cells to the panel processing furniture, structural element, and timber frame building industries. First defendant joined the plaintiff’s workforce as a Senior Service Engineer. In 2009, after beginning employment with the plaintiff’s business, the defendant received two promotions. The defendant had access to sensitive information about the plaintiff’s company while performing his job duties. On March 25, 2009, the first defendant submitted his letter of resignation and asked the plaintiff to terminate his employment because the second defendant offered him a better position.
The plaintiff learned that the defendant had sent the second defendant a number of emails from an official email address that contained sensitive information. These emails included information about customers, such as updated commissioned reports that had been added, the status of pending offers, and other technical information about plaintiff’s products. This was later acknowledged by the defendant in an affidavit. The court determined that the second defendant had planned to establish a competitive private limited company in India and had conspired with the first defendant to do so. The first defendant was going to be named the Director of Sales and Service of the Second Defendant’s Indian entity. It was agreed that the first defendant would work for the second defendant up until such a company is established. As a result, the injunction was granted, prohibiting the use of the plaintiff’s data.
It is obvious that signing an NDA is crucial for safeguarding one’s private information. Furthermore, before signing an NDA, it is crucial to comprehend and carefully read all clauses. Additionally, one must ensure that the NDA agreement does not in any way disadvantage them and must guarantee that the entering party will always have access to an alternative legal remedy.
 Mr. X v. Hospital Z AIR (2003) 1 SCC 500
 M.F.A. No. 1682/2010 C/W M.F.A. No. 1683/2010 (CPC) decided on 10.10.2012, Karnataka High Court