THE POSSIBLE EFFECT OF THE PROTECTION OF PERSONAL INFORMATION ACT 4 OF 2013 ON ORGAN AND TISSUE DONATIONS

Abstract

Organ donation for purposes of a transplant is an altruistic act that lends itself to the ethical principle of beneficence. Available evidence indicates that in the transplant process information or data sharing is of the utmost importance. The Constitution of the Republic of South Africa, 1996 and other legislative frameworks like the National Health Act 61 of 2003, facilitates participation in support of this principle. Section 12(2) of the Constitution states that “Everyone has the right to bodily and psychological integrity, which includes the right – … (b) to security in and control over their body; and (c) not to be subjected to medical or scientific experiments without informed consent.” Section 27(1) and (2) provide that everyone has the right to have access to health care services... The same section immediately prompts the state to “take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights”.
The NHA in sections 14–17 applies a safeguard on how the principle of beneficence in respect of organ donations should be achieved. These sections address the issues of confidentiality, access to and the protection of health records. The guarantees in the Constitution and the NHA are not absolute but may be limited in one way or another, especially in cases where the donor is declared brain dead and therefore deceased. In such a case the Protection of Personal Information Act 4 of 2013 does make provision for instances where the protection of personal information may be limited. Although it is feared that the POPI Act might negatively influence the organ donation process, an analysis of the Act and its possible influence on the transplantation scenario seems unfounded if a few precautionary measures are put in place.