Professional Indemnity Law


Posted 07 October 2020

Thato Molefe

McQuoid-Mason has recently summed up the impact of the COVID-19 Regulations on patient-doctor confidentiality. The article can be accessed here but is summarised below.

The current position:

  • The HPCSA’s Ethical Rules of Conduct for Practitioners Registered under the Health Professions Act at Rule 13 state that a practitioner may only divulge a patient’s information:
    • In terms of a statutory provision;
    • At the instruction of a court of law or;
    • Where justified in the public interest.
  • If the divulgement of information does not fall within the aforementioned circumstances then a medical practitioner may only divulge a patient’s information with the patient’s express consent, the patient’s parent’s written consent (in the case of a minor aged below 12) and (in the case of a deceased patient) the written consent of their next-of-kin or executor of their estate.
  • Disclosure in the public interest is afforded in the Constitution, common-law, other legislation and in many court orders.
  • McQuoid-Mason indicates that the common-law envisages further instances where patient-doctor confidentiality can be breached lawfully such as where:
    • There is a threat to a third party;
    • There is a moral, social or legal obligation to make a disclosure to a person or agency that has a reciprocal moral, social or legal obligation to receive the information;
    • A patient complains to the doctor’s regulatory body about the practitioner’s conduct regarding their treatment, and the doctor cannot avoid making certain disclosures about such treatment as part of his or her defence
  • There is an ethical duty on medical practitioners to, where possible, inform their patients in advance if circumstances or statutes and/or rules and guidelines may require them to breach the patient-doctor confidentiality rule. This is especially important with regard to disclosures made in the public interest and for the protection of the patient and/or third parties.

The current position in light of COVID-19 regulations:

  • COVID-19 was declared a notifiable disease in terms of regulation 12 of the Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions.
  • This means that this disease is required by law to be reported to government authorities.
  • The COVID-19 regulations (formally known as the Regulations Issued in terms of Section 27(2) of the Disaster Management Act,2002), at Regulation 4 and as amended), provide that any person who has been confirmed as having COVID-19, is suspected of having COVID-19 or has come into contact with a person who has COVID-19 may not refuse:
    • A medical examination, including taking bodily samples;
    • Admission to a health establishment or a quarantine or isolation site; or
    • Submission to mandatory prophylaxis, treatment, isolation or quarantine or isolation to prevent transmission.
  • A refusal by a person to be subjected to any of the above can be seen as a criminal offence and ‘any person who intentionally exposes another person to COVID-19 may be prosecuted for an offence, including assault, attempted murder or murder.’ (See Regulation 11 of the COVID-19 regulations)
  • The person or institute taking a sample from a patient testing for COVID-19 should record the patient’s name, identity or passport number, residential address and cellphone number. They should obtain a copy or photograph of a form of identification (passport, ID book, driver’s license) and promptly submit this information (and any information regarding likely contacts of the person tested, if applicable) to the Director-General of Health.
  • This information will be included in the COVID-19 Tracing Database established in terms of the regulations.
  • All information in this database and any other personal information obtained in terms of the regulations is considered confidential and the disclosure of this information is prohibited unless authorised to do so or disclosure will aid in addressing, preventing or combating the spread of COVID-19.
  • Medical practitioners should inform their patients that the information collected by them (only in relation to the preventative measures for COVID-19) will be disclosed to the Director-General of Health and once it is captured on the database, it will be treated as confidential.