South Africa: Right Of Access: Disclosing Clinical Information Without Patient Consent In South Africa

During May 2019, the Health Professions Council of South Africa ("HPCSA") released a "guide" to address the pressure that medical practitioners regularly face from medical aid schemes. When looking at the right of access, the guide states that medical practitioners are required to provide a patient's clinical information upon request, without the patient's consent. In this article, we look at how the law treats patient confidentiality and recommend the best practices practitioners should adopt.

HPCSA guide & the right of access

During May 2019, the Health Professions Council of South Africa ("HPCSA") released a "guide" in relation to medical practitioners being coerced by medical aid schemes into signing repayment agreements in the context of alleged fraudulent claims.

Contained in this guide is a section* relating to the right of access by a medical aid scheme to its member's clinical records held by a practitioner. The guide has stated that medical practitioners are required to provide medical aid schemes with a patient's clinical information on request, without the patient's consent having been obtained first. Although this guide seems straightforward, it needs to be unpacked further to determine whether this is the true position in our law.

HPCSA guide & the right of access

During May 2019, the Health Professions Council of South Africa ("HPCSA") released a "guide" in relation to medical practitioners being coerced by medical aid schemes into signing repayment agreements in the context of alleged fraudulent claims.

Contained in this guide is a section relating to the right of access by a medical aid scheme to its member's clinical records held by a practitioner.  This section of the guide stipulates that in terms of regulation 15J(2)(c) under the Medical Schemes Act 131 of 1998, "a medical scheme is entitled to access any treatment record held by a managed health care organization or health care provider and other information pertaining to the diagnosis, treatment and health status of the beneficiary in terms of a contract entered into pursuant to regulation 15A, but such information may not be disclosed to any other person without the express consent of the beneficiary. This entitlement is subject to the prescribed requirements for disclosure of confidential information in terms of section 14 and 15 of the National Health Act 61 of 2003 and Ethical Rules of Conduct for Practitioners registered under the Health Professions Act, 1974 as published under Government Notice R717 in Government Gazette 29079 of 4 August 2006. Practitioners are therefore required by law to disclose or release the treatment records of their patients to the medical scheme without having to obtain the written consent of their patients."

The guide has therefore stated that medical practitioners are required to provide medical aid schemes with a patient's clinical information on request, without the patient's consent having been obtained first. Although this guide seems straightforward, it needs to be unpacked further to determine whether this is the true position in our law.

The guide has therefore stated that medical practitioners are required to provide medical aid schemes with a patient's clinical information on request, without the patient's consent having been obtained first. Although this guide seems straightforward, it needs to be unpacked further to determine whether this is the true position in our law.

Which regulation applies?

Regulation 15 of the Medical Schemes Act relates specifically to the provision for managed health care.

  • The term "managed health care" is defined in the regulations as "clinical and financial risk assessment and management of health care, with a view to facilitating appropriateness and cost-effectiveness of relevant health services within the constraints of what is affordable, through the use of rules-based and clinical management-based programmes;".
  • The term "participating health care provider" is also defined by the regulations as "a health care provider who, by means of a contract directly between that provider and a medical scheme in terms of regulation 15A, or pursuant to an arrangement with a managed health care organisation which has contracted with a medical scheme in terms of regulation 15A, undertakes to provide a relevant health service to the beneficiaries of the medical scheme concerned

Therefore, in order to be subject to these regulations, a health care provider must have contracted with a medical aid scheme in terms of regulation 15A.

It is also imperative that we have regard to the full wording of the regulation in question. Regulation 15J(2)(c) reads as follows: "Notwithstanding anything to the contrary in these Regulations subject to the provisions of any other legislation, a medical scheme is entitled to access any treatment record held by a managed health care organisation or health care provider and other information pertaining to the diagnosis, treatment and health status of the beneficiary in terms of a contract entered into pursuant to regulation 15A, but such information may not be disclosed to any other person without the express consent of the beneficiary;"

At this stage, on the basis of the regulations, where a medical practitioner has not contracted with a medical scheme and is not a "participating health care provider" in a managed health care plan, it is clear that he or she is not required to provide medical aid schemes with their patients' clinical records.

If a medical aid scheme requires the clinical notes of a patient attended to by a practitioner who is not a "participating health care provider", the practitioner will require the patient's consent prior to providing any clinical notes or patient information to the medical scheme.

There is concern that the regulation in and of itself is ambiguous and its intention unclear. A reading of the regulation, specifically the portion that states ", but such information may not be disclosed to any other person without the express consent of the beneficiary;"  could have two different meanings.  

  1. This portion of the regulation could mean that the information requested may be provided by the contracted health care practitioner or facility to the medical aid scheme without the patient's express consent but to no other person,
  2. or it could possibly mean that the medical aid scheme constitutes "any other person" and that information cannot be disclosed to the medical aid scheme without the express consent of the patient. Therefore, the regulation itself is unclear.

With regard to those medical practitioners who have contracted with a medical scheme, we need to look further at the regulations that apply.

Regulation 15J(2)(c) begins with the phrase "subject to the provisions of any other legislation" which means that regulation 15J(2)(c) must be applied subordinately to other applicable legislation.

In South African law, as in most other legal systems, there is a hierarchy in respect of legislation. Regulations are considered to be subordinate legislation which must comply with the provisions of superior legislation. In this instance, the National Health Act 61 of 2003 ("NHA") is legislation that was enacted by Parliament and all health care related legislation, other than those statutes that are considered also to be "superior", must comply with its provisions. As the regulations associated with the MSA are subordinate legislation, those regulations must comply with superior legislation such as the NHA and cannot provide for provisions that are inconsistent with such superior legislation. 

Disclosing confidential information

Patient confidentiality and the sanctity of the doctor-patient relationship must be of paramount importance in the minds of all practitioners as this is how it is dealt with by our legislation.

Section 14 of the NHA expressly provides for the confidentiality of patient information and stipulates that there are only three instances where a patient's confidential information may be disclosed, specifically where:

  • The patient has consented to the disclosure of his or her information;
  • A court has ordered a medical practitioner or health care facility to disclose that information; or
  • Non-disclosure of the information could be a serious risk to public health.

As regulation 15J(2)(c) states that it is subject to the provisions of other legislation, it is subject to section 14 of the NHA. The effect hereof is that, notwithstanding the wording of the regulation, a practitioner must seek his or her patient's consent before disclosing that patient's information to a medical aid scheme (unless the scheme is able to produce proof that the patient has consented to disclosure).

Furthermore, in the guideline in question, the HPCSA has itself stipulated that this disclosure of patient information is subject to sections 14 and 15 of the NHA together with the ethical guidelines published and gazetted by the HPCSA. The ethical rules provided for by the HPCSA reiterate the provisions of section 14 of the NHA and provide for instances where "other" information can be disclosed only with the express consent of the patient, the patient's guardian if the patient is under the age of 14 or the next-of-kin or executor if a patient is deceased.

Both the provisions of the NHA and the ethical rules of conduct provided by the HPCSA demonstrate that the consent of a patient when a practitioner discloses their confidential information is of paramount importance.

Seen against this background, the final conclusion of the guidance note to the effect that "Practitioners are therefore required by law to disclose or release the treatment records of their patients to the medical scheme without having to obtain the written consent of their patients" has the potential to mislead.

Having regard to the purpose of the regulation together with the legislation to which it is subject, we are of the view that the confidentiality of the patient remains paramount and that express patient consent is still required in order to provide confidential information to a medical scheme.

What should practitioners do?

While the HPCSA has published this guide and practitioners could rely on it if ever called upon to provide reasons for disclosing confidential information without consent, we would recommend that practitioners take a proactive approach when dealing with these requests from medical schemes and still obtain consent from their patients by writing to them, advising what has been requested and asking them to provide or refuse consent in a documented fashion. Should the patient refuse, the medical practitioner would be able to provide this refusal to the medical aid scheme and advise that the information will not be provided.

An argument has been made that it is likely that when entering into a contract with a medical scheme, the patient will likely sign consent for that medical scheme to have access to that patient's health care information. It has been suggested before that this consent would be sufficient for the medical aid scheme to obtain records from a medical practitioner.

However, one must bear in mind that such a "blanket" consent was given at some point in time in the past, with respect to records which existed at that time and with respect to which the patient may have had no difficulty with regard to disclosure. Subsequent to providing that consent, the patient may have revoked it or may have changed his or her mind as regards whether or not it is happy for the medical aid scheme of which he or she is a member to have access to records which subsequently came into existence. To be safe, practitioners must request consent to disclose from a patient even if a medical aid scheme requesting the patient's information is able to produce such a blanket consent.

The main point that needs to be borne in mind is that, without the patient's consent, the medical practitioner may not lawfully provide confidential information to any third party.

In conclusion, it is recommended that each practitioner be proactive and obtain consent from a patient (either through the patient or medical aid scheme) before disclosing any patient information to a medical aid scheme. The current position of our legislation does not entitle any entity to obtain confidential information without consent and relying on a guide published by the HPCSA may not be enough to protect the practitioner in certain instances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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