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Other considerations

So far, we have only covered consent as it applies to adults with decisional capacity. For patients who lack decisional capacity (children who are too young to understand, and adults with a mental impairment that prevents them from understanding), a proxy may consent on their behalf.

When an adult patient lacks the decisional capacity to consent to a proposed intervention, substitutes may be referred to, in the following order of precedence:

  1. An advance directive made when the patient had decisional capacity. A valid advance directive that applies to the circumstances must be honoured, unless there is good reason to believe that the patient changed his or her mind.
  2. A proxy mandated in writing by the patient to make decisions on his or her behalf.
  3. A person authorised by law or a court order.
  4. The patient’s spouse or partner.
  5. Parent.
  6. Grandparent.
  7. Adult child.
  8. Brother or sister.
When an adult patient lacks the decisional capacity to consent to a proposed intervention, substitutes may be referred to

The only exception to obtaining consent from a valid substitute is in an emergency. If delay would result in serious harm to the patient, you should act in the best interests of the patient.

Where children are concerned, the consent of the parent or legal guardian is required for children who are either under the age of 12 or who lack the decisional capacity to make the decision before them.† If the treatment entails a surgical procedure, the child’s consent must be supported by a parent’s written assent.

In practice, it is reasonable to seek the consent of any minor with the capacity to understand the nature and implications of the proposed treatment or procedure, regardless of age. This should not present a problem if the child and parents are in accord about a decision to consent to treatment.

If there are two people with parental responsibility, it is usually sufficient for one of them to give consent, but where decisions may have profound, irreversible consequences, both of them should be consulted where practicable. (See Consent to Medical Treatment in South Africa – An MPS Guide for more detailed information about consent issues regarding children, and for a guide to parental responsibility.)

Summary

In summary, when obtaining a patient’s consent:

  1. Take the patient’s particular circumstances into account when discussing options. The issues discussed should include the risks, benefits, cost and expected outcome of each option, including the option of doing nothing.
  2. Check the patient’s understanding. If the patient lacks decisional capacity, obtain it from someone whom the law recognises as a valid substitute.
  3. Be careful not to place the patient under pressure to choose a particular course of treatment. Be transparent about any financial interest you might have in a recommended healthcare facility.
If the patient lacks decisional capacity, obtain it from someone whom the law recognises as a valid substitute

Respect for patient confidentiality

Confidentiality is usually thought of as an ethical issue. It is, but it is also a legal obligation:

  • Employed healthcare workers are usually bound by a confidentiality clause in their contracts.
  • There is a common-law duty to preserve professional confidence.
  • The Constitution guarantees citizens the right to privacy, including the right to not have the privacy of their communications infringed.3
  • Rule 13 of the Council’s Ethical Guide states that practitioners may only divulge confidential information without the patient’s consent when specific circumstances apply.† This does not apply in the case of a termination of pregnancy. Under the Choice on Termination of Pregnancy Act of 1996 there is no age or maturity test for a girl to consent to a termination.
  • The National Health Act makes it an offence to divulge information about health service users without the user’s consent. The only permissible exceptions are when the law or a court order requires disclosure, or if non-disclosure would represent a serious threat to public health.4

The obligation of confidentiality goes beyond undertaking not to divulge confidential information; it includes a responsibility to make sure that all records containing patient information are kept securely. Confidential records should not be left where other people may have casual access to them and information about patients should be posted or faxed under private and confidential cover, with appropriate measures to ensure that it does not go astray.

The obligation of confidentiality goes beyond undertaking not to divulge confidential information
Patients should be informed about the kind of information being held about them, how and why it might be shared, and with whom it might be shared. Patient information leaflets are a convenient way of notifying patients about this, but they are not sufficient in themselves. Bear in mind that few patients will bother to read the leaflets, and some may not be able to read them.
It is especially important to inform patients – and to let them know that they have the right to withhold consent – if you intend to use their personal information for purposes other than their immediate care, or to share it with non-medical agents such as welfare workers. In addition, be especially cautious about sharing information governed by specific regulations outlined in Box 5.

Box 5: Legislation stipulating confidentiality requirements for certain types of medical information

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 the information should be de-identified.

“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, 28 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 caregiver, a child protection organisation or the person in charge of a hospital may consent to disclosure on his or her behalf.

Confidentiality is not an absolute obligation – there are circumstances in which disclosure is permissible or even mandatory (see Box 6).

Box 6: Circumstances in which disclosure is either permissible or mandatory

  • To meet the terms of a Statutory provision (eg, notification of a communicable disease)
  • To comply with a court order
  • In the public interest (which includes, but is not limited to, “situations where the patient or other persons would be prone to harm as a result of risk-related contact”.)
  • With the patient’s consent.
  • With the written consent of a parent or guardian of a minor under the age of 12 years
  • With the written consent of the next of kin or the executor of the estate of a deceased patient.

HPCSA, Confidentiality: Protecting and Providing Information (2001) para 3.2

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 Council; its booklet, Confidentiality: Protecting and Providing Information (2008), sets out detailed guidance on the circumstances in which patient information may be disclosed to third parties. The principles that should be applied are listed in Box 7.

Box 7: 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:
    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. Anonymise data where unidentifiable data will serve the purpose;
    3. Keep disclosures to the minimum necessary.
  3. Health care practitioners must always be prepared to justify their decisions in accordance with these guidelines.

Probity

However, for the older professions (with the possible exception of the oldest of them all), “professionalism” goes far beyond the mere exercise of skill; indeed, it extends beyond the workplace and into one’s private life. A medical professional is expected, by his colleagues and society, to be a person who can be trusted to act with integrity at all times.

“Probity requires that the doctor’s conduct at all times justifies patients’ trust and the public’s trust in the profession.”

Segen’s Medical Dictionary (2011) www.medical-dictionary.thefreedictionary.com

The term “professionalism” is so widely applied nowadays that its currency has been debased. In many people’s minds the word “professional” can be applied to any skilled worker, and “professionalism” to skilled work of any kind.

The term “professionalism” is so widely applied nowadays that its currency has been debased
Your professional integrity is a measure of the degree to which your own professional reputation and credibility remain intact

“Integrity is generally defined as wholeness, honesty and ‘uprightness’, being in sound and intact condition; undamaged, untainted. Your professional integrity is a measure of the degree to which your own professional reputation and credibility remain intact.

It is more than just clinical or technical excellence alone, since a major element of a person’s integrity derives from the way in which they are viewed by others. Anything which has the potential to reduce a professional person’s reputation in the eyes of another undermines their professional standing.”5 (See Box 8 for examples.)

Box 8: Examples of unprofessional conduct

  • Making misleading or false claims about your practice
  • Touting for business
  • Succumbing to inducements to provide services to patients that are not clinically indicated
  • Accepting perverse incentives
  • Over-charging patients
  • Fraudulently claiming for services that have not been rendered
  • Lack of transparency to patients about financial interests in healthcare facilities or pharmaceuticals
  • Impeding patients who wish to seek a second opinion
  • Sexual impropriety, particularly with patients
  • Involvement in criminal activities
  • Continuing to practise when impaired
  • Not reporting impaired colleagues
  • Not reporting unethical behaviour on the part of colleagues
  • Engaging in medical research without the approval of an ethics committee
  • Anything that undermines public confidence in the profession
  • Anything that undermines the reputation or standing of the profession

(List derived from HPCSA guidance)