Medical practitioners are required to comply with the principle of confidentiality for ethical and legal reasons. Confidentiality is also linked with the right to privacy, which is a protected human right under our Constitution. Patients often approach their trusted health-care providers with the confidence that their personal affairs will be kept private and generally, it is unacceptable and illegal to disclose anyone’s medical information without his/her consent. However, as with many rules in law, there are exceptions that may apply to the general rule. Section 36 of the Constitution can limit certain human rights and may apply when a balance must be struck between two competing rights. For example, where the right to privacy and the right to freedom of expression are in conflict, one right might prevail over the other if it is in the interests of justice for one of the rights to be limited.
The Constitution provides that everyone in South Africa has the right to privacy, which includes the right not to have the privacy of their communications infringed.
In so far as medical information is concerned, the privacy of a patient’s communications or disclosures to medical practitioners should be protected. If the patient’s confidence is not safeguarded, it is likely that s/he will be unwilling to divulge information that is critical to his/her medical treatment. This could yield a catastrophic result that might have a negative impact on the patient’s health.
The National Health Act 61 of 2003 (“NHA”) and the Promotion of Access to Information Act 2 of 2000 (“PAIA”) regulate the rights of patients and third parties to access medical records. There are special clauses relating to personal information, particularly information held by medical practitioners, and the right to privacy. In terms of these clauses, all information must be controlled by information officers in public institutions and the heads of private bodies.
The Protection of Personal Information Act 4 of 2013 (“POPI”) also prohibits the processing (like collecting and sharing) of personal information about a person’s health, amongst other recognised grounds, as a general rule. However, POPI does allow for the processing of information about a person’s health in certain instances, such as where that person has expressly consented to the processing of the information. Another example where consent does not have to be obtained is where medical practitioners, health-care institutions or social services must disclose the information for the proper treatment and care of the patient.
Together with what is mentioned above, no one may disclose any information about a person’s health unless:
- the person whose information is disclosed consents in writing;
- a court order or any other law requires the disclosure;
- in the case of a minor below the age of 12 years, the child’s parent or guardian has consented in writing;
- in the case of a deceased person, the written consent of the deceased’s next-of-kin or executor of his/her estate is obtained;
- non-disclosure of the information poses a serious threat to public health; and
- a patient lodges a complaint against a medical practitioner within the Health Professions Council of South Africa regarding the patient’s treatment, thereby requiring the medical practitioner to make disclosures while conducting a defence.
The NHA recognises that the right to privacy is not unfettered and that disclosures about a person’s health can be made under certain circumstances, especially where it might be in the public interest to do so. An example is in respect of public figures. Public figures also have the right to privacy, however, the right may be limited in certain instances as they conduct their affairs in the public eye. If a public figure’s health status is relevant to his/her public activities, such health status may be disclosed by medical professionals for the public benefit, or if such disclosure is made on a privileged occasion.
This became a point of contention recently in the legal matter relating to the former president, Mr Jacob Zuma. A journalist published an article referring to a sick note Mr Zuma relied on in an application for a postponement of a court date. Mr Zuma alleged that his medical information was leaked, however, the counter argument relates to the fact that he attached the doctor’s certificate to documents that were filed at court as part of his application. The information contained in his application subsequently became part of the public record and the journalist, together with the prosecutor, denied any breach of the ethical and legal duty of confidentiality. The matter has not yet been finalised and it will be interesting to see how the court will rule as this is a crucial public interest issue which requires weighing the public’s interest with an individual’s right to privacy.
The above indicates that although a person’s medical information should remain confidential, it can be shared in certain instances. The most common instance being the person giving consent to their medical information being released. However, the above matter with Mr Zuma also indicates that once a person makes their own medical information public, it might be used by others. This is something that everyone should keep in the back of their minds, especially as sometimes people tend to post their medical information on social media and not always realising that they might have made their information public. It is advisable to err on the side of caution by refraining from disclosing the medical information of others except in circumstances where the law dictates otherwise. When in doubt, always seek legal advice.