Most people would agree that patients, when visiting their treating medical practitioner, are probably ill and distressed due to this illness. As a result, the patient might not be able to remember all the information discussed during their consultation. This could be one reason why a patient would choose to record their consultation with their medical practitioner. There might of course be other, less positive, reasons for doing so.
The relevant legislation to look at when assessing this dilemma is the Regulation of Interception of Communications and Provisions of Communications-Related Information Act, 70 of 2002 (“RICA”).
According to RICA, all intentional interceptions of any communications are prohibited. This means that, as a general rule, RICA prohibits the recording of a conversation.
However, in section 4(1), RICA lists a few factors that limit this general rule. The limitations to this general rule are as follows:
- Any person may intercept any communication if he or she is a party to the communication (unless the interception is performed for purposes of committing an offence);
- Any person may intercept any communication if one of the parties to the communication have given prior consent (unless the interception is performed for purposes of committing an offence).
- Any person, in the course of carrying on of any business, may intercept any indirect communication that relates to or takes place in the course of carrying on of that business.
Turning to the dilemma faced by Dr A, the patient did not obtain Dr A’s consent to record the conversation and there was nothing to suggest that the recording was made in the course of carrying out any business. The patient was, however, a party to the conversation held during the consultation with Dr A and was therefore entitled to record that conversation/consultation.
Protection of Personal Information Act, 4 of 2013 (“POPIA” / “the Act”)
The right to privacy is enshrined in section 14 of the Constitution of the Republic of South Africa. One of the main purposes of POPIA is to give effect to this constitutional right. Given that we are discussing a dilemma that could be seen as a possible breach of privacy, it is only fit to consider POPIA and the provisions thereof.
POPIA applies to the exclusion of all other legislation that relates to the processing of personal information that is materially inconsistent with POPIA. This means that if any other legislation contradicts POPIA, the provisions of POPIA override such legislation.
According to POPIA, personal information may only be processed if the data subject consents to the processing thereof. It follows that you may only record a conversation if you have the consent of the person whose personal information is being discussed.
POPIA provides an extensive definition of the term “personal information” that is information relating to an identifiable, living, natural person (and where applicable, an identifiable, existing juristic person). The Act lists a number of categories of information that fall within the definition such as:
- information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, wellbeing, disability, religion, conscience, belief, culture, language and birth of the person;
- information relating to the education or the medical, financial, criminal or employment history of the person; and
- the personal opinions, views or preferences of the person.
The above are just a few of the categories of personal information listed in the definition. It is important to note that the list of categories of information under the definition of the Act is not an exhaustive one.
While, in terms of POPIA, it is a contravention to process personal information as defined in the Act without a person’s consent, one has to consider that a patient, in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA), is entitled to copies of their treating medical practitioner’s medical records, which may contain the medical practitioner’s professional opinion in relation to the diagnosis of a patient’s medical condition and treatment thereof.
So, in Dr A’s scenario, we can confirm that the recorded conversation was:
- made by the patient during their consultation with Dr A (i.e. the person who recorded the conversation was a party to said conversation); and
- the conversation did not include any of the medical practitioner’s personal information but rather information regarding the patient’s treatment and management.
Point 1 clearly falls within the provisions of RICA and so the provisions of this legislation have not been contravened. It does not appear that the provisions of POPIA come into play in the light of point 2. Given these two defining factors of the recording, it appears that the recording by Dr A’s patient was lawful in terms of both POPIA and RICA.
It is therefore advisable for all medical practitioners to be mindful that their consultations may be recorded by patients, even without their express consent, so to avoid any unwanted surprises such as faced by Dr A.
On the other hand, medical practitioners may also wish to record consultations as a form of record keeping. If this is the case, consent must be obtained from patients as their personal information will be recorded. Such a recording may be useful should a medical practitioner receive complaints from patients or should they institute legal proceedings against the practitioner. However, practitioners should be cautious when making such a recording, as a patient would be entitled to a copy of that recording. The recording could make it easier for a practitioner to prove, for instance, informed consent, but could also be used by the patient to prove the lack thereof.
As a final word of caution, it is always recommended that discussions held with patients be detailed and remain topical, but this even more the case if the consultations might be recorded.
Read the article on pages 18 - 19 in the SAMA Insider Magazine here.