Aspects of confidentiality in Medical Law

Abstract

The aim of this study was an examination of the patient’s right to privacy and confidentiality in medical law, the causes of actions under which the medical practitioner can be find liable and the grounds of justification or defences and exceptions that the medical practitioner can rely on to rebut the unlawfulness of his or her conduct. The examination was conducted within the framework of the South African, Canadian and American legal systems and particular attention was paid to privacy in the mental health care setting. This analysis necessitated the need to start with an examination of the definitions and concepts of privacy and confidentiality and a discussion of the need and importance thereof in the doctor-patient relationship. This included a discussion of the ethical issues involved. The physician-patient privilege is also examined. In particular the development and protection of the concept of privacy through legislation and constitutional protection is analysed and examined. What is clear is that the right to privacy and confidentiality can never be absolute. The rights of others in society always need to be considered and therefore certain exceptions to maintain confidentiality are allowed, such as the duty to warn an endangered person, and legislation that requires the reporting of notifiable diseases. Likewise, in the modern health care there are many other people, that have a legitimate claim to information, be it for billing purposes, managed care, research purposes, quality assurance or workplace or fraud investigations to name but a few. What is important is that the minimum required information necessary for the purpose for which it is needed, must be given, and that the patient must be informed and give consent to the release of such information. There are also operational difficulties in the modern health care setting that make it difficult to maintain privacy, such as semiprivate rooms and caregiver stations within earshot of waiting rooms. The most important findings are that South Africa is actually in a better position to that of the USA and Canada, in the sense that there is no patchwork of law that protect the right to privacy. We have similar legislation either in place or in the pipeline and not such a confusing array of provincial and national legislation. What still needs to be put into place and what is suggested in the Protection of Personal Information Draft Bill, published by the SALRC, is the office of Information Protection Commissioner. What is also needed is a code of conduct for the health care professional, giving practical guidelines on how to protect health information. Common law privacy jurisprudence will continue to have application in the resolution of privacy disputes. However, in accordance with the principle of constitutional supremacy, a court must test a challenged conduct against all possible relevant provisions of the Bill of Rights, whether the applicant relies on them or not. Any conduct or law that is inconsistent with the Bill of Rights is invalid and the obligations proposed by it must be fulfilled.