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.