The
right of access to information: some ramifications for the health sector
1. Introduction
The Promotion of Access to Information Act of 2000
(“the Act”) came into operation in March this year. The Act purports to give
effect to the human right of access to information. It contains very detailed
prescriptions on procedure, forms and types of access. It also sets timeframes
within which a person or institution from which information is requested, has
to respond. The Department of Justice administers the Act. The Act overrides
any other Act that provides for more restrictive access to information. In this
regard concern has been expressed in relation to its suitability for the health
sector and its relationship with the proposed National Health Bill.
As a first step, all health care facilities (including private practices), irrespective of whether they are private or public, has to decide which information is to be made available “voluntarily and automatically” to the public at large for free and for sale. All other information has to be made available as set out below and at the fees described below. This list has to be included in the manual that every facility has to have that describes access to records held by that facility (sections 14 and 51). A body can also request the Minister of Justice to exempt certain types of information from the application of the Act. All facilities should have a policy on the retention of records, as well as when records may be disposed of, etc.
A person requesting access to records or information
held by a private body has to show that s/he is requesting the information in
order to protect or exercise his/her rights. A person requesting information
from a public body does not have to show that s/he is requesting it in
pursuance of their rights. This creates a rather strange anomaly in that
persons will have easier access to health care information (or even their own
records) held by state health care facilities, than those held by a private
sector facility. Apart from this, there are two more differences between access
to information held by public and private bodies: public bodies has to appoint
so-called “information officers” and also has to have a process of internal
appeal if the requester is not satisfied.
A person requesting information has to do so on the
prescribed form (found in the regulations to the Act), and there are two types
of fees payable. The Act distinguishes between “personal requesters” and
“requesters”. A “personal requester” is a person requesting information about
him/herself. Such a person does not have to pay the standard fee of R35 (in the
case of information requested from a public body) or R50 (in the case of
information requested from a private body). All other requesters have to pay
that fee. When access is to be given, there are three more types of fees that
all requesters have to pay, i.e. reproduction fees (for photocopying, computer
disks, etc.); search and preparation fees (R15 per hour or part thereof in the
case of public bodies and R30 per hour or part thereof in the case of private
bodies); and actual postage. The Act does not provide for faxing costs, i.e. a
requester would either have to receive the information by mail, collect it
personally, or the private or public body could fax it, if it so wishes, on its
own account.
Refusal of access to information may only take place
on the grounds prescribed by the Act (sections 34-45 in the case of public- and
sections 63-69 in the case of private bodies). If part of a record may be
refused, and part of it not, the principle of severability states that such
parts should be deleted, photocopied out of severed from the parts to which
access should be granted. Therefore the mere fact that a part of a record
contains information that may be refused may not serve as a reason to refuse
access to the rest of the record.
Some of the most pertinent grounds for refusal concern
the protection of privacy of a third party and the protection of
confidentiality agreements. This means that private information may not be
unreasonably disclosed to a third party. Personal information includes medical
information, financial information, etc. As it is uncertain as to what
“unreasonable” disclosure entail, it is advisable that medical practitioners do
not provide any information relating to a patient to any third party without
the patient’s informed consent. Alternatively, medical practitioners may conclude
confidentiality agreements with their patients, if, for example, they want to
protect the medical information of a minor from being accessed by a parent.[1]
Medical aid funds, pharmaceutical companies,
researchers, etc. all request patient information from health care
practitioners from time to time. Even though such information may be
de-identified, it may still constitute a violation of privacy. In order to
protect themselves from possible legal action, medical practitioners should in
all cases obtain the informed consent of patients as to the specific requesters
to whom specified information will be divulged. If a medical aid fund requests
information from a medical practitioner, only information as delineated in the
Medical Schemes Act of 1998 may be given to medical aid funds, and then only
under the prescribed circumstances. These circumstances include that the
information has to serve the purpose of managed care and that access has to
take place in terms of an agreement between the medical aid fund and the
service provider.
Other grounds for refusal include commercial
information of a third party where the disclosure of such information would
cause disadvantage in contractual or other negotiations, priviledged legal
information and the commercial information of a private body. It should be
noted that the list for grounds of refusal in relation to public bodies differs
from those listed for refusal by private bodies. Information relating to police
dockets in bail proceedings, for example, may be refused under certain
circumstances listed in the Act. SARS records, for example, are also protected
by this list.
Medical records that do not fall within one of the
grounds for refusal, but which contain information that is likely to cause
serious physical or mental harm to the patient requesting it, has to be dealt
with in terms of a specific procedure set out in the Act. In short, the patient
must be asked to nominate a health practitioner with whom the person from whom
the information is requested can consult on the possible serious harm and
ensure that adequate arrangements are made as to the counseling of the patient.
5. Mandatory
disclosure
Despite falling within the grounds for refusal, the
Act states that certain information has to be disclosed. Such disclosure must
take place if it reveals a substantial contravention – or failure to comply
with the law or an imminent and serious public safety risk and the public interest in the disclosure
clearly outweighs the harm contemplated by the ground on which disclosure could
be refused. This may be very risky terrain, as some people may feel disclosing
the Hiv status of a person falls within the ambit of this section. However, it
should be borne in mind that the Act only applies to where information is
requested. It does not apply where information is volunteered. In such cases
the laws in relation to the protection of privacy, as well as the relevant
ethical considerations still apply. If information is requested and it is
possible that it falls within this ambit, it is advisable to first obtain legal
advice on this matter.
In practice, the Act will operate as follows:
1.
A person will request
access on the prescribed form. In the case of public bodies the information
officer will take responsibility for the request, the head of a private body
has to duly delegate a person to fulfill this function. The information officer
must open a file for every requester, so as to keep track of the flow of
correspondence on the matter.
2.
The information officer
writes the requester a letter stating that the request has been received and a
decision will be made within 30 days. This period may be extended if the search
or request concerns a large number of documents, etc. In this case, however, the
requester must consent to such an extension. If the record concerns a health
record that may pose serious harm to the requester, the requester must be asked
in this letter to nominate a health care practitioner.
3.
If the request is
granted, written notice must be given to the requester of the access fee (R35
or R50) and the fees in relation to searches, reproduction and postage. It is
advisable that a table sets out exactly how this is calculated. The letter
should include reference to the fact that the request may approach a relevant
court of law if not satisfied with the outcome. In the case of a public body,
the requester must be made aware of the internal appeal procedure.
4.
If the request is
denied, written notice must be given with full particulars as to the grounds,
as specified in the Act, on which access is refused. Again information has to
be given as to the rights of appeal or review.
5.
If a record was lost,
destroyed, could not be found or does not exist, the requester must be informed
of that. An affidavit or affirmation to that effect has to be made and attached
to the letter. The affidavit must state all the steps taken in order to find
the document and it is advisable that the policy of the facility in relation to
the retention, destruction, etc. of records be attached to such affidavit and
letter. Destroying or losing a document so as to evade the provisions of the
Act constitutes an offence for which a fine or up to 2 years imprisonment
given.
6.
If records are requested
for which the consent of a third party first has to be obtained (sections 47ff
and sections 71ff), those procedures and timeframes have to be adhered to.
Elsabé
Klinck
Legal
Advisor: SA Medical Association
12 June 2001
These documents do not constitute official SAMA policy.
It is, however, the opinion of the legal department
and is provided without prejudice.
[1] This may be the case where
child abuse is suspected, or where the minor has legally obtained a termination
of her pregnancy, has legally consented to medical tests or treatment, etc.