Medical records are one of the most important pieces of evidence in personal injury claims. Where a patient who is usually a plaintiff in such claims consents to the disclosure of their records, no controversy arises. However, there have been instances where consent has been refused, raising questions about disclosure obligations and the extent of such obligations.
Section 14(2) of the National Health Act, 2003 (the NHA) prohibits the disclosure of medical records except in very limited circumstances, including where the patient has consented in writing and there is a court order, or where "any law requires disclosure". The Health Professions Council of South Africa has also issued ethical guidelines to its members to guide and direct their practice, including guidelines on the confidentiality of records. The provision of medical records also implicates other legislation, including the Protection of Personal Information Act, 2013 (POPIA).
In Divine Inspiration Trading 205 (Pty) Ltd and Another v Gordon & Others 2021 (4) SA 206 (WCC) the court dealt with the intersection between a patient's rights to confidentiality and privacy and whether to compel disclosure where the patient, who was the plaintiff in that case, had refused to consent to the disclosure of her records. The main action arose from a personal injury claim in which the plaintiff sought compensation for injuries sustained in an accident at the premises of the defendants. After the merits were settled on a 70/30% split in favour of the plaintiff she increased the amount claimed for loss of income from ZAR 500,000 to over ZAR 7 million.
The defendants sought the plaintiff's medical records held by Dr Lewis, a general practitioner, and Dr Rausch, a psychiatrist. The records were initially sought in the form of a subpoena to which the doctors responded that they were unable to comply without the plaintiff's consent. A Rule 35(3) notice was then served on the plaintiff requesting the records, to which she responded that she was not in possession of them. The defendants accordingly brought a formal application to compel production of the records. Only the plaintiff opposed the application on the following grounds: (i) the records were irrelevant; (ii) discovery of the records would infringe her rights to dignity and privacy; and (iii) the disclosure would impinge on her rights under POPIA.
The court found against the plaintiff on all grounds. In so far as the subpoena of the records is concerned, the court held that subpoenas issued under Uniform Rule 38 are delegated legislation constituting "any law" within the meaning of section 14(2)(b) of the NHA and that a subpoena issued under that rule therefore provides a lawful basis for disclosure. The court also found that POPIA did not apply as the doctors were obliged to comply with the subpoena and that POPIA in any event permitted the processing of information for the conduct of proceedings. Furthermore, while the court accepted that medical records comprise sensitive and personal information that is private and confidential, it was not persuaded to refuse disclosure in circumstances where the provision of the records was for the purposes of litigation as opposed to other purposes such as publication. The doctors were accordingly ordered to provide the records, with the plaintiff being ordered to bear the costs of the application.
It bears mentioning that in MEC for Health, Gauteng v Solomons 2023 (6) SA 601 (GJ), a decision of the Full Bench, the court declined to follow Divine Inspiration to the extent that it held that a subpoena issued under Rule 38 was "law requiring disclosure" under section 14(2)(b) of the NHA. The Full Bench found that the administrative process of issuing a subpoena could not override a patient's constitutional right to privacy as this would render the requirement of a court order under section 14(2)(b) redundant, thereby bypassing judicial oversight. However, the facts in Divine Inspiration and MEC for Health are distinguishable. In the latter case the records sought were not those of any of the parties to the ongoing litigation.
In WB v RB and Another 2024 (4) SA 316 (KZD) only limited disclosure of medical records was permitted.
What is clear from the authorities above is that as medical records affect the rights to dignity and privacy of individuals, there is a strong privacy interest in maintaining their confidentiality. The need to access the records will be weighed against the rights of the patient in any given case, which entails a consideration of whether there is a genuine need to access the records sought. Should the documents not be genuinely necessary, disclosure may not be ordered.
Therefore, where a patient has withheld consent for the disclosure of their records, such disclosure may only be made by order of court, unless other grounds for disclosure without consent, including where non-disclosure would present a serious threat to public health, are present.
