ACCESS TO MEDICAL RECORDS WITHOUT CONSENT OF PATIENT AND THE PUBLICATION THEREOF IN THE PUBLIC DOMAIN: ISSUES OF PRIVACY, DIGNITY, FREEDOM OF EXPRESSION AND PUBLIC INTEREST Tshabalala-Msimang and Medi-Clinic Ltd v Makhanya 2008 3 BCLR 338 (W)

Abstract

Access to the medical records of a patient is generally governed by common law principles relating to consent, applicable legislation and ethical considerations. In the normal course of events a medical practitioner or health-care establishment may not disclose/release the medical records of a patient unless the patient has consented to such disclosure/release or, in the absence of consent, there is a legal duty on the medical practitioner/health establishment, or such disclosure/release is justified in terms of a recognized ground of justification/legal defence such as statutory authority, a court order, necessity, therapeutic privilege, unauthorized administration or public interest. In essence the protection of the patient’s confidentiality in terms of the common law, applicable legislation and medico-legal ethics, is an articulation of the constitutional protection of the rights to privacy (s 14), dignity (s 10), bodily integrity (s 12) and even equality (s 9). In terms of the constitutional construction and interpretation of these rights, it is clear that these rights are not absolute but may be limited if it is justifiable and reasonable in an open and democratic society as
contemplated in section 36 of the Constitution. The right to privacy of one’s medical records can, however, be contentious, when this right is weighed against the duty to disclose, specifically if the party seeking disclosure or release thereof, is the press claiming that disclosure is in the public interest and a manifestation of its constitutional right to freedom of expression. The boundary conditions that come into play when the right to privacy, dignity, bodily integrity and equality are pitted against the right to freedom of expression, become even more problematic when the patient whose medical records are sought to be disclosed/released by the press is a public figure, a sports star, a celebrity or, as in the present case under discussion, the South African Minister of Health.