When faced with the delicate issue of disclosing patient information, Rule 13 of the Ethical Rules of the Health Professions Council of South Africa (HPCSA) is clear: a medical practitioner may only divulge information with the patient's express consent. However, there are instances where obtaining such consent is not straightforward. This article outlines the steps to take when a patient cannot consent to the disclosure of their records.
Consent Requirements Under Various Circumstances
Under various circumstances, consent requirements differ. Adults (and children aged 12 and above with adequate maturity and can comprehend the implications) can consent to their own treatment. For minors under the age of 12, written consent must be obtained from a parent or guardian. In the case of deceased patients, consent must come from the next-of-kin or the executor of the estate.
Exceptions to Consent
There are exceptions to the need for consent. Specifically, consent is not required if the request for information is in accordance with a statutory provision, at the instruction of a court of law, or justified in the public interest, for example if a patient poses a significant risk to themselves or others, such as in cases of severe mental health issues where there is a risk of violence or self-harm, sharing medical information might be necessary to ensure appropriate intervention and protection.
When Patients Are Mentally Incapacitated
When a patient is incapacitated due to a mental illness or disorder and cannot manage their own affairs, obtaining consent presents a unique challenge. Assuming the request does not fall under the statutory, court-ordered, or public interest exceptions mentioned above, medical practitioners should follow certain steps to ensure ethical and legal compliance.
According to the Ethical Rules (Booklet 5), if the medical practitioner believes that disclosure is in the patient’s best interest, they should seek consent from the person legally designated to give such consent as per the National Health Act 61 of 2003. Section 7 of this Act outlines the hierarchy for obtaining consent if no one has been legally appointed to manage the patient’s affairs. The order of precedence is as follows: spouse or partner, parent, grandparent, adult child, adult brother or sister. This section is applicable, in terms of the Act, for consent to medical treatment. It is generally recommended however that the same hierarchy be followed when obtaining consent to disclose medical records.
Moreover, under Section 63 of the Promotion of Access to Information Act 2 of 2000 (PAIA), the head of a private body, such as a hospital, must refuse access to records if this involves unreasonable disclosure of personal information about a third party, including a deceased individual. However, access may not be refused if it pertains to physical or mental health or well-being of an individual who is under the care of the requester and is either under 18 years old or is incapable of understanding the nature of the request, provided that granting access would be in the individual’s best interests.
Summary of Steps for Medical Practitioners
If faced with a situation where a patient cannot provide consent, a medical practitioner should request written consent from either a legally appointed person, such as a curator, or from the patient’s next of kin, following the specific order of precedence: spouse or partner, parent, grandparent, adult child, or adult sibling.
It is crucial to confirm that the patient is indeed incapacitated, either through the practitioner’s own diagnosis or from a medical report by another practitioner. If there is any doubt about the patient’s mental capacity, the medical practitioner must seek the patient’s consent or obtain confirmation of the patient’s diagnosis and current condition.
Documenting the steps taken to obtain consent and the reasons for deciding to disclose information in the patient's file is essential.
By meticulously following these guidelines, medical practitioners can navigate the complex ethical and legal landscape surrounding the disclosure of patient information when consent cannot be obtained directly from the patient. This approach ensures that the practitioner acts in the best interest of the patient while adhering to the required legal and ethical standards.
