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Disclosure of medical records vs the right to privacy
14 June 2021
 
“A client recently fell over boxes standing in the aisle in my store. He is suing me for damages claiming that the head injuries he sustained from the fall resulted in him being fired from work. I’ve heard from another source that he was dismissed because of a history of alcohol and drug abuse and that he has been in and out of rehabilitation. We’ve requested access to his medical and psychological reports, but his attorney refuses claiming medical privilege. Surely, this cannot be right, particularly if these can prove that there were other factors leading to his dismissal?”

Disclosure of documents is a cornerstone of modern litigation and is intended to ensure a level playing field and so that parties cannot hide information or use information to ambush another party. Accordingly, our Court Rules prescribe specific methods in which parties can request information from each other and also obliges parties to disclose information, unless such information is privileged. The rules even allow third parties to be compelled to provide information that may be relevant to the proceedings.

Our courts recently had occasion to consider whether doctors could be compelled to provide medical records of their patient to the opposing party. In this case the doctors argued that they were not allowed to provide the records due to sections of the National Health Act and the Ethical Rules of Conduct for Practitioners Registered under the Health Professions Act that prohibited them from disclosing a client’s medical records without the patient’s consent, which had not been given. The patient also argued that her information was protected under the Protection of Personal Information Act (POPIA) however it was argued that because the applicants were not “responsible parties” as defined in POPIA certain exceptions provided for in the Act did not apply. She further contended that the medical records were not relevant to the matter.

The court found that the relevant health legislation and regulations permitted the disclosure of confidential information if such information was required by law, and that the subpoena issued to a party in terms of Rule 38(1) of the Court Rules met this definition of law as required by rule 38 and accordingly, medical privilege could not be claimed. The court also held that, relevance of the information was of paramount importance when confidential information is requested and that in this case the medical records were relevant as it could evidence a history of anxiety, drug and alcohol abuse on the part of the patient. 

The court further held that POPIA was not intended to be in conflict with the rules relating to discovery  or the procurement of evidence for trial by way of subpoenas under rule 38 and that accordingly the patient’s reliance on the provisions of POPIA as grounds for objection to the release of her medical records was not sound. 

What can be taken from this case is that medical privilege does exist and will not easily be waived unless relevance can be shown. If this can be established, medical reports can be requested and if necessary subpoenaed. In your situation, it would be prudent to discuss the situation with your attorney and to consider applying to court to have the medical reports subpoenaed if you can show that they will be relevant to the case. 
 
 
 
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