Confidentiality of Health Information
The legal starting point is that health information is confidential.
The Constitution
This position is based upon the constitutional rights to bodily and psychological
integrity and privacy (sections 12(2) and 14 respectively of the Constitution of the
Republic of South Africa).
The National Health Act
The National Health Act also stipulates that all information concerning a user,
including information relating to his or her health status, treatment or stay in a health
establishment, is confidential (section 14(1)). The Act allows for the following
exceptions to this general rule namely where –
(a)
(b)
(c)
the user consents to the disclosure in writing;
a court order or any law requires disclosure; or
non-disclosure of the information represents a serious threat to public health.
The National Health Act further states that a health worker or any health care provider
that has access to the health records of a user may disclose such personal information
to any other person, health care provider or health establishment as is necessary for
any legitimate purpose within the ordinary course and scope of his or her duties where
such access or disclosure is in the interests of the user (section 15).
Section 15 protects health workers and health care providers where they disclose
personal information to any other person or a health care provider or health
establishment. One cannot be penalised by the law for obeying the law. This
protection is only available where the disclosure –
(a)
(b)
(c)
(d)
is necessary
for any legitimate purpose
within the ordinary course and scope of his or her duties
where the disclosure is in the interests of the user
For purposes of section 15, 'personal information' means personal information as
defined in section 1 of the Promotion of Access to Information Act, 2000 (Act 2 of
2000).
The Promotion of Access to Information Act
This Act states that “personal information” means information about an identifiable
individual, including, but not limited to(a)
information relating to the race, gender, sex, pregnancy, marital status,
national, ethnic or social origin, colour, sexual orientation, age, physical or
mental health, well-being, disability, religion, conscience, belief, culture,
language and birth of the individual;
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(b)
(c)
(d)
(e)
(e)
(f)
(g)
(h)
(i)
information relating to the education or the medical, criminal or employment
history of the individual or information relating to financial transactions in
which the individual has been involved;
any identifying number, symbol or other particular assigned to the individual;
the address, fingerprints or blood type of the individual;
any identifying number, symbol or other particular assigned to the individual.
the personal opinions, views or preferences of the individual, except where
they are about another individual or about a proposal for a grant, an award or a
prize to be made to another individual;
correspondence sent by the individual that is implicitly or explicitly of a
private or confidential nature or further correspondence that would reveal the
contents of the original correspondence;
the views or opinions of another individual about the individual;
the views or opinions of another individual about a proposal for a grant, an
award or a prize to be made to the individual, but excluding the name of the
other individual where it appears with the views or opinions of the other
individual; and
the name of the individual where it appears with other personal information
relating to the individual or where the disclosure of the name itself would
reveal information about the individual,
but excludes information about an individual who has been dead for more than 20
years.
The Medical Schemes Act
Section 59(1) of the Medical Schemes Act states that a supplier of a service who has
rendered any service to a beneficiary in terms of which an account has been rendered,
shall, notwithstanding the provisions of any other law, furnish to the member
concerned an account or statement reflecting such particulars as may be prescribed.
Regulation 5 of the General Regulations to the Medical Schemes Act requires that the
account or statement contemplated in section 59(1) of the Medical Schemes Act must
contain the following:
(a)
The surname and initials of the member;
(b)
the surname, first name and other initials, if any, of the patient;
(c)
the name of the medical scheme concerned;
(d)
the membership number of the member;
(e)
the practice code number, group practice number and individual provider
registration number issued by the registering authorities for providers, if
applicable, of the supplier of service and, in the case of a group practice, the
name of the practitioner who provided the service;
(f)
the relevant diagnostic and such other item code numbers that relate to such
relevant health service;
(g)
the date on which each relevant health service was rendered;
(h)
the nature and cost of each relevant health service rendered, including the
supply of medicine to the member concerned or to a dependant of that
member; and the name, quantity and dosage of and net amount payable by the
member in respect of the medicine;
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(i)
(j)
(k)
(i)
where a pharmacist supplies medicine according to a prescription to a member
or to a dependant of a member of a medical scheme, a copy of the original
prescription or a certified copy of such prescription, if the scheme requires it;
where mention is made in such account or statement of the use of a theatre(i)
the name and relevant practice number and provider number
contemplated in paragraph (e) of the medical practitioner or dentist
who performed the operation;
(ii)
the name or names and the relevant practice number and provider
number contemplated in paragraph (e) of every medical practitioner or
dentist who assisted in the performance of the operation; and
(iii) all procedures carried out together with the relevant item code number
contemplated in paragraph (f); and
in the case of a first account or statement in respect of orthodontic treatment or
other advanced dentistry, a treatment plan indicatingthe expected total amount in respect of the treatment;
(ii)
the expected duration of the treatment;
(iii) the initial amount payable; and the monthly amount payable.
Conclusions
The fact that the obligation in section 59(1) of the Medical Schemes Act is to furnish
the account to the member does not detract from the argument that the disclosure is
lawful. It is clearly for the purpose of claiming from the member’s medical scheme
that this information is required to be reflected on the statement. This is borne out by
the very next subsection in section 59 which states that a medical scheme shall, in the
case where an account has been rendered, subject to the provisions of the Act and the
rules of the medical scheme concerned, pay to a member or a supplier of service, any
benefit owing to that member or supplier of service within 30 days after the day on
which the claim in respect of such benefit was received by the medical scheme.
It is as much for the convenience of the health care provider as it is for the member
that the account is usually submitted directly to the medical scheme without first
being sent to the member for onward transmission. It must also be borne in mind that
it is within the power of the member, to expressly or tacitly consent to the submission
of the account directly to the medical scheme or its administrators. The legal
obligation to furnish an account to the member is not diminished by this.
By completing a form giving his or her medical scheme details, by furnishing the
health care provider with proof of membership of a medical scheme, by obtaining preauthorisation for a particular medical procedure from the scheme, the member clearly
indicates a desire for the account to be submitted to his or her medical scheme.
Otherwise why would he or she furnish such information? She could pay the account
and submit the claim herself without supplying her medical scheme details to the
health care provider.
In terms of the common law, consent can be implied by a person’s conduct or words
or expressed in writing. The fact that the National Health Act requires in section 14
that the consent to the disclosure to be in writing must be weighed against the fact that
in section 15 it also permits the disclosure of a user’s personal information to “any
other person” within the ordinary course and scope of his or her duties where such
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access or disclosure is in the interests of the user. The provisions of section 14(2) are
made subject to those of section 15 in the Act. The submission of an account or
statement to the user’s medical scheme instead of requiring him or her to pay it up
front and then claim a refund is clearly in most instances in the interests of the user. It
is not outside the ordinary course and scope of the health care provider’s duties to
render and account or statement since this is required of him or her in terms of section
59 of the Medical Schemes Act.
The relevant diagnostic codes and other item code numbers that relate to the relevant
health service, the nature and cost of each relevant health service rendered and the
date on which the service was rendered would all be personal information as
contemplated in section 14 of the National Health Act. However the Medical Schemes
Act, which in the event of a conflict with the National Health Act takes precedence
over it, requires that this information appears on the health care provider’s account or
statement. Since this is a legal requirement, a provider cannot refuse to provide the
information required in terms of regulation 5 on the grounds of confidentiality,
despite the fact that the member is not necessarily the patient.
In the health context, therefore, information about a patient’s 1.
2.
3.
race, gender, sex, pregnancy, marital status, national, ethnic or social origin,
colour, sexual orientation, age, physical or mental health, well-being, disability,
religion, conscience, belief, culture, language and birth;
medical history;
blood type
may lawfully be conveyed by a health care provider to a medical scheme for the
purpose of payment of an account by the medical scheme or any other purpose that
falls within the definition of the business of a medical scheme as it appears in section
1 of the Medical Schemes Act (Act No 131 of 1998). This would satisfy the
requirement of a legitimate purpose for the disclosure in section 15 of the National
Health Act since the legislature itself has legitimated this purpose in passing the
Medical Schemes Act.
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