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Professional ethics

Confidentiality is considered to be central to the trust between doctors and patients and doctors are held responsible by their professional bodies for protecting personal information that patients share with them. An unjustifiable breach of confidentiality is taken very seriously by the HPCSA; its booklet, Confidentiality: Protecting and Providing Information (2008), sets out detailed guidance on the circumstances in which patient information can be disclosed to third parties. The principles that should be applied are listed in Box 5.

Statutory obligations

The National Health Act 2003 not only obliges all healthcare establishments to create and maintain a health record for every user of the establishment, but also enjoins them to respect patient confidentiality and specifies the circumstances in which patient records can be accessed.

Section 14 states that information relating to a health service user’s health status, treatment or stay in a health establishment may only be disclosed with the user’s written consent, or in compliance with a court order or a law, or if non-disclosure represents “a serious threat to public health”.

Sections 15 and 16 cover access to records. It says that healthcare workers with access to a user’s health records may disclose information “for any legitimate purpose within the ordinary course and scope of his or her duties where such access or disclosure is in the interests of the user”. They may also, with the authorisation of the patient concerned, examine health records in the context of delivering treatment. There are other statutes that include confidentiality clauses regarding particular types of medical information (see Box 6).

Box 5: HPCSA principles of confidentiality

1. Patients have a right to expect that information about them will be held in confidence by health care practitioners. Confidentiality is central to trust between practitioners and patients. Without assurances about confidentiality, patients may be reluctant to give practitioners the information they need in order to provide good care.

2. Where health care practitioners are asked to provide information about patients, they should:

2.1 Seek the consent of patients to disclosure of information wherever possible, whether or not the patients can be identified from the disclosure; Comprehensive information must be made available to patients with regard to the potential for a breach of confidentiality with ICD10 coding.

2.2 Anonymise data where unidentifiable data will serve the purpose;

2.3 Keep disclosures to the minimum necessary.

3 Health care practitioners must always be prepared to justify their decisions in accordance with these guidelines. HPCSA, Confidentiality: Protecting and Providing Information (2008), para 4.

Box 6: Legislation stipulating confidentiality requirements for certain types of medical information

National Directives and Instructions on Conducting a Forensic Examination on Survivors of Sexual Offence Cases in Terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, Directives 3 and 5.

All results of HIV tests conducted on alleged sexual offenders under this Act must be kept in a locked cupboard accessible only by the head of the health establishment. The results should be given, in a sealed envelope, only to the Investigating Officer, who will, in turn, pass sealed duplicates to the alleged offender and the survivor. A copy of the results must be kept by the health establishment which may, if applicable, make them available to the prosecutor in the event of court proceedings relating to the alleged sexual offence. Access to the confidential information contained in the J88 form is legally privileged while a police investigation is underway, but may be disclosed to the defence lawyer with the consent of the police investigator and the public prosecutor if he or she has obtained a court order.

Choice on Termination of Pregnancy Act, 92 of 1996, section 7.

Records of termination of pregnancy must be made by the practitioner and the person in charge of the facility. The person in charge of the facility must notify the Director-General within one month of the termination, but without including the name or address of the woman concerned. “The identity of a woman who has requested or obtained a termination of pregnancy shall remain confidential at all times unless she herself chooses to disclose that information.”

Children’s Act, 35 of 2005, sections 12, 13, 133 and 134

“Every child has the right to confidentiality regarding his or her health status and the health status of a parent, care-giver or family member, except when maintaining such confidentiality is not in the best interests of the child.”

In addition, the Act specifies that information about a child’s virginity, HIV status and contraceptive use should not be divulged without the child’s consent. In the case of HIV status, the exception is if the child is below the age of 12 and lacks the maturity to understand the implications, in which case the parent or care-giver, a child protection organisation or the person in charge of a hospital may consent to disclosure on his or her behalf.