Parental access to minors' health records in the South African health care context: concerns and recommendations

Mn Slabbert

doi:10.17159/1727-3781/2004/v7i2a2854

Abstract

Privacy and confidentiality have long been recognized as essential elements of the doctorpatient relationship. Patients should feel free to disclose the most intimate and private medical facts about themselves to their physicians in order to facilitate optimal patient care. Medical records, whether hand-written or electronic, also play an important role in other contexts, such as medical research, health care management and financial audit. In South Africa there is little consistency in approaches to patient confidentiality. There are also no national standards or policies on patient confidentiality, apart from specific ethical rules, some ad hoc statutory provisions and general constitutional provisions not directly related to the intricacies of the doctor-patient relationship. A closer look at the relevant statutory provisions reveal the existence of conflicting standards, most notably in respect of parental access to a minors' health records. The purpose of this paper is to examine the discrepancies and contradictory provisions relating to the access to and disclosure of health information, in particular parental access to health records of minors. In the final instance, some recommendations will be suggested.

Highlights

Medical records have evolved over time into much more than merely a doctor's aidemémoire as they were originally intended
In South Africa, the legal position relating to the confidentiality of minors' health records has become more obscured than ever with the promulgation of the Promotion of Access to Information Act10 which, against the background of the common law and constitutional protection of privacy and read together with both the Children's Bill11 and the National Health Bill,12 sketches a conflicting picture
Before closer attention is given to the patchwork of provisions in the South African law relating to the access of parents and third parties to the health records of minors, a brief overview of the legal position of the minor patient in South African law is necessary

Summary

Introduction

Medical records have evolved over time into much more than merely a doctor's aidemémoire as they were originally intended. A person's health, on the other hand, is essentially a very private matter and unauthorised disclosures of one's health information may cause irreparable harm The tension between these two goals, namely patient privacy on the one hand and access to information on the other, has recently been heightened by the transition to electronic health information in support of health care delivery and health data networks.. In South Africa, the legal position relating to the confidentiality of minors' health records has become more obscured than ever with the promulgation of the Promotion of Access to Information Act which, against the background of the common law and constitutional protection of privacy and read together with both the Children's Bill and the National Health Bill, sketches a conflicting picture. This paper will first, very briefly, explore the question whether a child is owed a duty of confidentiality, after which the confidentiality of health records will be discussed, in particular the question whether parents may access their minor children's health records without their consent

Should a child patient be owed a duty of confidentiality?

The minor patient in South African law

Access to and disclosure of information contained in health records

55 Investigating Directorate

Conclusion