Medico-legal aspects of pathology - current dilemmas regarding confidentiality and disclosure

This article deals with confidentiality and disclosure in the practice of pathology in South Africa. The recent bringing into force of the National Health Act and the proposed implementation of the International Classification of Diseases (ICD 10) codes as well as the furore regarding the accuracy of HIV related mortality statistics emanating from death certificates has focused the spotlight on ethical and legal problems with regard to confidentiality. Medical confidentiality is a duty cast upon a medical practitioner/health care provider (HCP) to keep secret any information, whether relating to a patient's ailment or otherwise, obtained directly or indirectly by the practitioner as a result of the doctor patient relationship. Confidentiality is governed by the ethical rules of the profession and the law. The ethical rules are based on the principles of autonomy and the duty not to harm patients. Rule 20 of the Health Professions Council of South Africa (HPCSA) Ethical Code makes it ethical misconduct to breach confidentiality '…except with the express consent of the patient or, in the case of a minor under the age of 14 years, with the written consent of his or her parent or guardian, or in the case of a deceased patient, with the written consent of his or her next of kin or the executor of his or her estate.' The rule has recently been amplified by Ethical Rules 24 26 of the HPCSA.5 Legally, the confidentiality of patient information is prescribed in the Constitution, statute law and in the common law. Section 14 of the Constitution specifically protects people from unwanted and unnecessary disclosures of information. Section 14 of the new National Health Act1 (NHA) has specific provisions regarding confidentiality, and the common law has recognised an action for invasion of privacy for many years. All these privacy provisions have to be measured against the right of access to information in the Constitution and the Promotion of Access to Information Act