Dutton - Medical Malpractice in SA

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Medical Malpractice in South African Law
The notion of medical confidentiality relates to the invasion of the right to personality
by means of a public disclosure of private medical facts. 74 The basis of
medical confidentiality is twofold. It protects the privacy of the patient, and it
performs a public interest function. 75 The duty of a physician to respect the confidentiality
of his patient is not merely ethical but is also a legal duty recognised by
the common law. 76 However, competing interests are weighed up by the courts,
and a doctor may be justified in disclosing his knowledge ‘where his obligations
to society would be of greater weight than his obligations to the individual.’ 77 In
this regard, sections 14 and 15 of the National Health Act, 61 of 2003 embody
this principle. Although consent to disclosure of information should ordinarily
be in writing, section 15 should be noted, which is an exception to this rule
and allows a health care provider or health establishment to disclose such personal
information as is necessary for any legitimate purpose within the ordinary
course and scope of his or her duties where such access or disclosure is in the
interests of the user. 78
It has been held that the concept of knowledge of unlawfulness (consciousness
of wrongfulness, ‘wederregtelikheidsbewussyn’) does not apply
in actions for breach of privacy. 79 The question in this regard is whether the
defendant must have performed conduct which he or she knew to have been
unlawful. 80 A plaintiff must normally allege and prove animus iniuriandi on the
74
Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A) at 849. See also Financial Mail
(Pty) Ltd and Others v Sage Holdings Ltd and Another 1993 (2) SA 451 (A) at 462E–F.
75
Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A) at 850: ‘This was recognised in
X v Y and Others [1988] 2 All ER 648 (QB) at 653 a–b where Rose J said: ‘In the long run, preservation
of confidentiality is the only way of securing public health; otherwise doctors will
be discredited as a source of education, for future individual patients “will not come forward
if doctors are going to squeal on them”. Consequently, confidentiality is vital to secure public
as well as private health, for unless those infected come forward they cannot be counselled
and self-treatment does not provide the best care …’.
76
Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A) at 850E. See also the National
Health Act, 61 of 2003, ss 14–17.
77
Jansen van Vuuren and Another NNO v Kruger 1993 (4) SA 842 (A) at 850G. ‘One is, as always,
weighing up conflicting interests and, as Melius de Villiers The Law of Injuries indicated, a
doctor may be justified in disclosing his knowledge “where his obligations to society would
be of greater weight than his obligations to the individual” because “(t)he action of injury is
one which pro publica utilitate exercetur”. To determine whether a prima facie invasion of the
right of privacy is justified it appears that, in general, the principles formulated in the context
of a defence of justification in the law of defamation ought to apply.’ See also McQuoid-
Mason The Law of Privacy In South Africa (Juta 1978) at 218; Neethling The Law of Personality
3 ed at 247).
78
The other exceptions recognized by s 14 are: where a court order or any law requires that
disclosure, and where non-disclosure of the information represents a serious threat to public
health.
79
C v Minister of Correctional Services 1996 (4) SA 292 (T) at 306A–F; referred to with approval in
Le Roux v Dey 2010 (4) SA 210 (SCA) at 222 (fn 43); para 6.9. below.
80
In Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) at 154F, Hoexter JA stated: ‘On behalf of
the defendant it was strenuously submitted that in the present case, even if the infringement
of the plaintiff’s personality rights was objectively unjustifiable, the plaintiff’s action should
nevertheless have failed for the reason that there was no consciousness of the wrongfulness