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Legal proceedings instituted in foreign jurisdictions

11 June 2021

By Mark Le Roux, Case Manager, Medical Protection


Dr H, a Medical Protection member in South Africa, received a witness summons to produce clinical records at the Magistrate’s Court of Western Australia on a specified date, in a dispute between Patient A and her spouse. Failure to comply with the official summons could have led to his arrest and imprisonment, or him being fined by the court. The witness summons allowed 10AUD for his reasonable expenses in complying.

Dr H contacted Medical Protection for assistance since he could also not contact his patient for her consent and did not know how to prepare the clinical records for reference by a foreign court.

How did Medical Protection assist?

Due to the short timeframe that was given to Dr H to comply with the witness summons, one of the Medical Protection case managers assisted Dr H in timeously resolving the issue.

On our advice, Dr H did not comply with the witness summons and we communicated this to the Australian legal representative acting on behalf of the spouse of Patient A. It was held that the Magistrate’s Court of Western Australia did not hold jurisdiction over Dr H and, further to that, if Dr H had acted on the witness summons without the documented consent of his patient, he would also be in violation of the National Health Act and the Protection of Personal Information Act, which specifically deals with the transfer of personal information outside the Republic of South Africa.

As a Medical Protection member, Dr H also had the advantage of being able to call on the support of our office in Australia, where we would have been able to instruct local attorneys if the matter had escalated.

Learning points

In this case the universal aspect of consent was a key element in deciding whether to comply with foreign court orders and legal proceedings. It was also apparent that any processing of data should at all times be with the consent of the data subject and that local legislation will always supersede the foreign legislation that might be attempted to be imposed.

Dr H in this case managed to make use of the medicolegal services available to him as soon as he became aware of the action that was instituted against him, and we were able to offer assistance promptly while still dealing with the foreign representatives.

It should also be noted that Dr H complied with the HPCSA’s recommendations on the duration of record keeping despite having prior knowledge of the fact that his patient and her family emigrated to Australia.