Due to the fact that a patient’s medical records contain highly sensitive, personal and confidential information, including but not limited to present, past, social and surgical medical history, the National Health Act makes it an offence to divulge information about patients without their 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.
According to the HPCSA Booklet 9 the following principles apply in regard to accessing information contained in medical health records and these provisions are applicable to both practitioners in private practice as well as those in the employ of the public service:
- A health care practitioner shall provide any person of age 12 years and older with a copy or abstract or direct access to his or her own records regarding medical treatment on request (Children’s Act No. 38 of 2005);
- Where the patient is under the age of 16 years, the parent or legal guardian may make the application for access to the records, but such access should only be given on receipt of written authorisation by the patient (Access to Information Act No. 2 of 2000);
- Information about termination of a pregnancy may not be divulged to any party, except the patient herself, regardless of the age of the patient (Choice on Termination of Pregnancy Act No. 92 of 1996);
- A health care practitioner may only make available the records to a third party without the written authorisation of the patient or his or her legal representative under the following circumstances:
- Where the third party is a health care practitioner who has had disciplinary proceedings instituted against him or her by the HPCSA and requires access to the records to defend himself or herself;
- Where the health care practitioner is under a statutory obligation to disclose certain medical facts, e.g. reporting a case of suspected child abuse in terms of the Children’s Act No. 38 of 2005;
- In provincial hospitals medical records must be kept under the care and control of the clinical manager. Access to such records shall be subject to compliance with the requirements of the Access to Information Act and such conditions as may be approved by the superintendent.
It is essential for medical practices to implement awareness campaigns to ensure that doctors and all staff have a good understanding of their obligations under the prevailing guidelines and that
non-compliance with the provisions of any law protecting the above-mentioned rights may result in possible disciplinary action form a regulatory body, a civil claim, criminal prosecution, a fine and/or imprisonment.
A practitioner should always consider making his or her clinical notes regarding a patient independently or separately from other practitioners and/or hospital notes due to the fact that if any of the other practitioners become the subject of an enquiry or investigation at any time, then your notes may, by default, also come under scrutiny.
In general, if there is any doubt as to whether patient information and/or records may be made available to any person/third party, then it may be a consideration to make the requested information available, according to the above-mentioned provisions, to the patient, and to then allow the patient to pass the requested information on the relevant party at their own discretion.