The issue of reconciling compliance with a subpoena requiring a medical practitioner to disclose a patient’s clinical information, with the medical practitioner’s ethical duty to keep such information confidential, often requires careful consideration. This controversial and unsettled question, of whether confidential medical records can be disclosed under a subpoena duces tecum without consent from the patient concerned, was considered by the Full Bench of the High Court in the matter of MEC For Health, Gauteng v Solomons 2023 (6) SA 601 (GJ).
In Solomons the appellant, the MEC for Health, Gauteng, was the defendant in an action for damages brought by a plaintiff on behalf of her minor child. The claim was based on the alleged negligence of the medical staff at a clinic in failing to properly monitor the plaintiff's labour, resulting in the plaintiff's baby being born with hypoxic ischaemic brain injury. The respondent was Dr Regan Solomons, a co-author of a research paper, which challenged the conventional view that basal gangliathalamic brain injury in the term or near-term infant is the result of an 'acute profound' ischaemic event. The principal author of the paper was a witness for the plaintiff in her damages claim to testify in support of the paper's conclusions, and Dr Solomons was listed as the contact person for further information on the article. According to the authors, the article presents a retrospective analysis of 10 medicolegal cases of neonatal encephalopathycerebral palsy survivors who sustained Intrapartum hypoxic ischaemic basal gangliathalamic pattern injury in the absence of an obstetric sentinel event.
The appellant issued and served a subpoena duces tecum on the respondent in terms of Rule 38 of the Uniform Rules of Court, calling on him to hand over to the Registrar of the High Court, or inform him of the whereabouts of, the following documents: (a) documents setting out the names of the parties, the division of the High Court that heard the matter, the case numbers and the judgments in each of the 195 medicolegal actions that were referred to on page 2 of the article; and (b) all supporting documentation, including, but not limited to, raw data, expert reports, medical records and MRI scans relating to the 63 cases referred to on page 3 of the article.
The respondent resisted the subpoena on the basis that the information requested was ‘privileged’ because of the confidentiality of patient information and a legal and ethical obligation on researchers and research institutions to protect the identities of research participants. Consequently, the appellant launched an application in the High Court in an attempt to compel the respondent to inform the Registrar and the court of the whereabouts of the documents. The application was dismissed by the court of first instance and this decision went on appeal to the Full Bench of the High Court.
The appellant’s case was that the respondent could not resist the subpoena because the requested documents related to, or formed part of, documents that were used in medicolegal actions that had been or might still be before the courts and as such they were public documents, which were not subject to a claim of privilege or confidentiality by anyone.
The argument of the respondent was that, in terms of the legislative framework regulating the healthcare profession, absent patient consent, he was not permitted to disclose confidential patient information unless ordered to do so by the court.
The relevant legislative framework:
Section 35 of the Superior Courts Act provides for a party's right to obtain documentation. Rule 38 of the Uniform Rules of Court provides for the manner in which a party may procure production of documents, namely by the issue of a subpoena duces tecum. Whilst a party is as of right entitled to issue a subpoena under this Rule, in terms of s 36(1)(c) of the Superior Courts Act, the recipient of a subpoena may refuse to produce the documentation sought provided he or she has a 'just excuse' for such refusal.
The National Health Act 61 of 2003 (the NHA) provides in section 14(1) that '(a)ll information concerning a user, including information relating to his or her health status, treatment or stay in a health establishment, is confidential'. Section 14(2) of the NHA provides that 'no person may disclose [such information]', except in certain limited instances, one of which is where 'a court order or any law requires that disclosure' (subsection (b)).
Booklet 5 of the Health Professions Council of South Africa's Guidelines for Good Practice in the Health Care Professions contains ethical guidelines to direct the practice of healthcare professionals with regard to a patient's right to privacy in terms of the Constitution of the Republic of South Africa, 1996. Paragraph 10 of booklet 5 deals with the disclosure of patient information in connection with judicial or other statutory proceedings. It provides that “health care practitioners should not disclose personal information to a third party such as a lawyer, police officer or officer of a court without the patient's express consent” but also that “health care practitioners must disclose information if ordered to do so by a judge or presiding officer of a court”.
The Full Bench decision:
Judge Maier-Frawley ultimately held that the lower court was correct in its finding that the ambit of 'just excuse' was wide enough to cover the confidentiality obligations imposed on the respondent by virtue of the relevant legislative framework and that the appellant did not have an unassailable right to disclosure of private and confidential medical records.
In considering whether medical records should be disclosed, the court provided the following principles to guide decision-makers:
(i) Medical records inherently affect the rights to dignity and privacy of individuals. Those rights must, by default, be respected and protected.
(ii) There is a strong privacy interest in maintaining confidentiality over medical records.
(iii) The need for access to medical records has to be weighed against the patient's privacy interest in every instance.
(iv) A court therefore has to carefully consider whether there is a genuine need for access to the requested medical records. This entails a consideration of the relevance of the documentation sought in each case, the potentially harmful effects that may result from disclosure, and whether the benefits of the principle of openness outweigh the dangers inherent in the disclosure of private information, including the conceivable violation of the dignity and psychological integrity of the patient or patients. If the records are not genuinely necessary, then, by default, the court ought to protect the individual's rights to dignity and privacy.
When disclosure of private and confidential medical information without patient consent was sought, judicial oversight was required, and a court would grant disclosure only in circumstances where a factual foundation had been laid for such disclosure, having regard to these guiding principles.
The Full Bench therefore held that the appellant's decision to issue a subpoena against a medical professional to produce private medical information was inappropriate:
(i) in the absence of patient consent;
(ii) absent proper inquiry undertaken by the court consequent to an application in terms of section 14(2) of the NHA; and
(iii) in circumstances where the medical professional was statutorily and ethically dutybound to resist compliance, more particularly, under threat of a costs order.
Further, the court held that the fact that a patient's private and confidential medical information was disclosed in a court file for purposes of that specific litigation (in which the patient was involved as a party) did not mean that the patient had provided blanket consent for the publication of their health information in any future unrelated litigation instituted between third parties.
The court therefore held that the conclusion reached by the lower court, that the appellant had utilised the wrong procedure in requesting to be provided with a patient’s confidential clinical information, was unassailable, and the appeal was dismissed.
The appellant consequently approached the Supreme Court of Appeal with a further appeal which was heard on 15 November 2024. The judgment was delivered on 30 December 2024 in MEC for Health, Gauteng v Dr Regan Solomons (1089/2023) [2024] ZASCA 184 (30 December 2024).
Unfortunately, instead of providing much-needed clarity on this topic, the Supreme Court of Appeal set aside the orders of both the Full Bench and the court of first instance. The reason given by the court for this order is that it was common cause that Dr Solomons did not have the requested information in his possession, and therefore the debate on whether the correct procedure to request the information was followed or not was purely academic and used merely to determine who should be liable for the costs of the application. While the MEC for Health wanted to obtain clarity on the procedure to be used in subsequent actions, the question whether the patient’s information could only be disclosed through an application brought under s14(2)(b) of the National Health Act, as opposed to simply by way of a subpoena, was not the relief sought in the notice of motion. The Supreme Court of Appeal therefore held that both the courts below ought to have struck the matter from the roll, and not made a finding on the merits, as the cause of action had been extinguished before the matter served before the court of first instance. The Supreme Court of Appeal held that “there was no cause of action at all before the court at the time it made its order. This means that the high court had no jurisdiction to enter into the merits of the matter. This being so, the full court likewise had no jurisdiction to exercise its discretion” [para 30]. The court continued to determine the precedential value of the earlier judgments and held that “the findings on the merits by both the court of first instance and the full court cannot have any precedential value. In the first place, this is because in the absence of jurisdiction, they ought never to have entered upon the merits’ [para 32].
As a result, both earlier decisions cannot be relied on in any future similar litigation. However, based on the obiter dicta in Solomons, in order to satisfy statutory and ethical obligations, doctors and legal advisors are urged to ensure that adequate consent is obtained from patients before medical records are disclosed.