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[2021] ZAWCHC 38
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Divine Inspiration Trading 205 (Pty) Ltd v Gordon and Others (22455/2019) [2021] ZAWCHC 38; 2021 (4) SA 206 (WCC) (3 March 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
Republic
of South Africa
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NUMBER: 22455/2019
In
the matter between:
DIVINE
INSPIRATION TRADING 205 (PTY) LTD
1
st
Applicant
THE
ALPHEN FARM ESTATE (PTY)
LTD
2
nd
Applicant
and
KATHERINE
GORDON
1
st
Respondent
DR
KATHERINE
LEWIS
2
nd
Respondent
DR
GISELLE
RAUSCH
3
rd
Respondent
MATTER
HEARD 25 JANUARY
2021
Coram
:
Mr Acting Justice Hockey
JUDGMENT:
DELIVERED ON 03 MARCH 2021
HOCKEY
AJ:
Introduction
and background facts
[1]
This is an application wherein the
applicants seek an order against the second and third respondents
directing them to provide the
applicants and this court with all
medical records, reports and x-rays (“the medical records”)
held by them in relation
to the first respondent.
[2]
The applicants require the medical records
for purposes of action proceedings (“the main action”)
wherein the first
respondent, as the plaintiff, claims damages from
the applicants (the defendants in the main action) as a result of
injuries sustained
by her in an accident when she visited the
premises of the applicants on 2 October 2015.
[3]
The second and third respondents are
medical practitioners, namely a general practitioner and a
psychiatrist, respectively. Both
of them had treated the first
respondent for certain medical conditions.
[4]
The second and third respondents are
restricted from disclosing the medical records of the applicant by
virtue of section 14 of
the National Health Act, 61 of 2003 (“the
NHA”), but may do so in terms of subsection (2)(b) when
“
a
court order or any law requires that disclosure”
.
[5]
The second and third respondents do
not oppose the relief sought by the applicants, but the first
respondent does so on the grounds
that (a) the medical records are
irrelevant to the dispute between the parties in the action
proceedings, (b) the discovery of
the medical records would infringe
on her right to dignity and privacy, and (c) the disclosure of the
medical record would impinge
on her rights under the Protection of
Personal Information Act, 4 of 2013 (“POPI”).
[6]
The merits in the action proceedings
between the applicants and the first respondent was settled on 27
September 2017. The settlement
provides that the applicants are to
pay 70% of the first respondent’s proven damages resulting from
the incident described
in the particulars of claim.
[7]
Subsequent to the settlement, the first
respondent amended her particulars of claim, the important amendment
being in respect of
her past and future loss of income, from
R500 000.00 to R7 028 100.00.
[8]
The applicants engaged an expert, Dr Johan
Lourens, a clinical psychologist and human resources consultant, to
examine the first
respondent and to deliver a report on the first
respondent’s employment prospects.
[9]
Dr Lourens subsequently consulted with the
first respondent, and thereafter informed the applicants’
attorneys that he required
the complete medical records and history
of the first respondent as held by the second and third respondents.
An exchange of correspondence
between the respective attorneys for
the applicants and the first respondent followed, wherein the former
requested the medical
records which request was refused by the
latter.
[10]
This issue came before the case managing
judge, Cloete J in terms of rule 37, who in her directives stated
that it
“
is open to the
[applicants] to subpoena such documents [ie the medical records]
duces tecum
in
accordance with rule 38.”
[11]
Following Cloete J’s directives, the
applicant caused subpoenas
duces tecum
to be issued for the medical records held by the second and third
respondents. The subpoenas were duly served on them, but, concerned
about the provisions of the NHA, they consulted attorneys, who wrote
to the applicants’ attorneys confirming that their clients
are
medical practitioners who are bound by the Ethical Rules for Conduct
for Practitioners Registered under the Health Professions
Act 56 of
1974 (“the HPA”) which dictates the circumstances where a
practitioner may divulge information. The attorneys
confirmed that
their clients were unable to get the requisite consent from the first
applicant and they were therefore unable to
comply with the
subpoenas. It was suggested in this letter that rule 35(3), being a
request for better discovery, would be an appropriate
step to take by
the applicants.
[12]
The applicants’ attorneys
subsequently caused a rule 35(3) notice to be served wherein they
requested discovery of the same
documents referred to in the
subpoenas directly from the first respondent. This notice was met
with a response from the first respondent’s
attorneys that the
requested medical records were not within the possession of the first
respondent or her legal advisors.
[13]
In the light of the above, the applicants
brought the present application.
The
nature of this application
[14]
This application follows the issuing and
service of subpoenas
duces tecum
on the second and third respondents after these respondents,
purportedly in compliance with their professional and ethical duties
in terms of the NHA and the HPA declined to comply with the
subpoenas. The application therefore is for an order in terms whereof
the second and third respondents are directed to provide the medical
records of the first respondent in their possession to the
applicants
as well as to this court.
[15]
The first respondent is clearly an
interested party, as the requested medical records pertain to her.
She is the only respondent
opposing the application.
[16]
Counsel for the first respondent stated in
his heads of argument that the application is brought
“
under
the guise of rule 35(3)”,
but
this is clearly not so. Any proceedings under rule 35 can only be
brought by and against the parties
inter
se
, and not against third parties such
as the second and third respondents in the present application, who
are not parties in the
main action proceedings.
[17]
Rule 38 requires a receiver of a subpoena
duces tecum
requiring the production of documents described in the subpoena to
lodge such documents with the registrar unless such a person
claims
privilege. One cannot doubt the
bona
fides
of the second and third
respondents in refusing to disclose the medical records.
Bona
fides
, however, is not enough to refuse
compliance with the subpoena served on them. They have to convince
the registrar or the court
that the claim of privilege is justified.
On this, it was held in
Trust Sentrum
(Kaapstad) (Edms) Bpk and Another v Zevenberg and Another
1989 (1) SA 145
at 150G:
“
...a person’s
genuinely (but wrongly) held belief can never serve to avoid
complying with what is effectively a summons to
produce to the
Registrar of the Court the information called for therein. He must
satisfy the Registrar (or conceivably the Court)
that his claim of
privilege is not merely
bona fide
,
but legally justified.”
[18]
In the present matter, the second and third
respondents’
bona fide
s
is unquestionable. They base their refusal to disclose the medical
records on a legislative injunction, namely section 14(2) of
the NHA
(in addition to their ethical duties), which prohibits them from
disclosing the medical information without the consent
of their
patient (the first respondent) unless, under subrule 2(b),
“
the
court or any law requires that disclosure”.
Whether
the second and third respondents are correct in their reliance on the
provisions of the NHA or their ethical rules in their
refusal to make
the medical records available, is another matter, which I shall deal
with below.
[19]
It is common cause that the first
respondent did not give consent for the release of her medical
records. It is against this background
that the present application
was launched. Although the relief sought is principally against the
second and third respondents,
it is the first respondent, who has a
direct interest who opposes this application.
[20]
The above is not to say that the general
principles relating to discovery are not applicable in the present
matter. In fact, from
what I can gather by their argument, both
counsel for the respective parties agree, that the issue of relevance
is pivotal. But
relevance is not the only issue that this court must
determine – the first respondent also relies on the restriction
to disclosure
of her information contained in provisions of the NHA
and the ethical rules of health practitioners, and also that
disclosure of
her records would amount to transgression of provisions
of POPI and would also infringe on her constitutional rights to
privacy
and dignity.
The
reliance on section 14 of the NHA, the HPA and Ethical Rules
[21]
The Health Professions Council of South
Africa (“the HPCSA”) is established under the HPA with a
number of objectives
and functions, including
“
to
uphold and maintain professional and ethical standards within the
health professions”,
in terms of
s 3(m) of the HPA. In furtherance of this objective, the HPCSA issued
“Ethical guidelines for good practice in
the health care
professions” by way of several booklets covering specific
topics of ethics.
In
Booklet 1, it is stated in para 5.2.1 that
“
[h]ealth
care practitioners should …[r]espect the privacy and dignity
of patients.”
Further, at para
5.4.2, it is stated that
health care
practitioners should
“
[r]ecognise
the right of patients to expect that health care practitioners will
not disclose any personal and confidential information
they acquire
in the course of their professional duties, unless the disclosure
thereof is: made in accordance with patient’s
consent; made in
accordance with the (sic) court order to that effect; required by
law; or in the interest of the patient.”
[22]
Booklet 5 deals in more detail about
patient confidentiality, but it is unnecessary to deal with its
content in detail for present
purposes. The important point is that
the privacy and dignity of patients should be respected, and that
disclosure of patient information,
including medical records may be
disclosed only in limited circumstances, including where the law
requires such disclosure. Such
circumstances include where a court
orders disclosure and where any law requires disclosure.
[23]
As already stated, besides reliance on
ethical rules to which they are bound, the second and third
respondents also rely on section
14 of the NHA in their refusal to
disclose the medical records under the subpoenas which were served on
them.
[24]
Section 14 of the NHA provides:
“
(1) All information
concerning a user, including information relating to his or her
health status, treatment or stay in a health
establishment, is
confidential.
(2) Subject to section 15, no person may disclose any
information contemplated in subsection (1) unless –
(a) the user consents to that disclosure in writing;
(b)
a court order or any law requires
that
disclosure; or
…”
(my underlining)
[25]
The medical records were required in terms
of subpoenas
duces tecum
which
were served on the second and third respondents in terms of rule
38(1). The question is whether this rule constitute “
any
law”
as referred to in section
14(2)(b) of the NHA. In
Industrial
Development Corporation of South Africa Ltd v PFE International Inc
(BVI) and Others
2012 (2) SA 269
(SCA),
Theron JA stated the following at 275 B-C:
“
It must be borne in mind
that rule 38 (1) is contemplated by s 30 of the Supreme Court Act 59
of 1959, which provides that a party
to civil proceedings ‘may
procure the attendance of any witness or the production of any
document or thing in the manner
provided for in the rules of court’.”
[26]
The
PFE
International
matter concerned the
interpretation of section 7 of the Promotion of Access to Information
Act 2 of 2000 (“PAIA”),
which contains an ouster clause,
in terms of which PAIA is not applicable
“
to
a record of a public body or a private body”
if,
in terms of subsection 7(1)(c),
“
the
production of or access to that record …
is provided for in any other law.”
In
considering this ouster provision, Theron JA had this to say at
275C-F:
“
Section
7(1)(c) does not stipulate, as a condition for the application of the
ouster provision contained in that section, that the
‘other
law’ should provide for the production of or access to the
record concerned at the time when it might be obtained
if the
provisions of PAIA were to apply. The section simply requires that
‘the other law’ (in this instance rule 38(1))
should
provide for the production of or access to the record. Rule 38
achieves that purpose. The rules of court relating
to subpoenas are
laws which provide for ‘the production of or access to’
records and these include records held by
persons who are not parties
to the litigation. To find otherwise would be contrary to the basic
principle established in Unitas
Hospital that PAIA was not intended
to have an impact on court procedure. It is so that the court in
Unitas Hospital was dealing
with discovery while this matter concerns
the issue of a subpoena. However, both of these procedures are
provided for in the Uniform
Rules.”
[27]
Theron JA’s judgment went on appeal
to the Constitutional Court and was confirmed by Jafta J (the
citation being
PFE International and
Others v Industrial Development Corporation of South Africa Ltd
2013 (1) SA 1
(CC), and quoted the following paragraph of Theron JA
with approval at para 21:
“
The purpose of s 7 is to
prevent PAIA from having any impact on the law relating to discovery
or compulsion of evidence in civil
and criminal proceedings. In the
event that ‘the production of or access to’ the record
‘is provided for in any
other law’ then the exemption
takes effect. The legislature has framed s 7 in terms intended to
convey that requests for
access to records, made for the purpose of
litigation, and after litigation has commenced, should be regulated
by the rules of
court governing such access in the course of
litigation.”
[28]
In
Unitas
Hospita v Van Wyk and Another
[2006] ZASCA 34
;
2006 (4)
SA 436
(SCA) (the case referred to by Theron JA in
PFE
International
), Brand JA dealt with the
right of access to records under section 50 of PAIA, and the ouster
clause in section 7 and concluded
(at para 21):
“
The deference shown by s 7
to the rules of discovery is, in my view, not without reason. These
rules have served us well for many
years. They have their own
built-in measures of control to promote fairness and to avoid abuse.
Documents are discoverable only
if they are relevant to the
litigation, while relevance is determined by the issues on the
pleadings. The deference shown to discovery
rules is a clear
indication, I think, that the Legislature had no intention to allow
prospective litigants to avoid these measures
of control by
compelling pre-action discovery under s 50 as a matter of course.”
[29]
The principles relating to PAIA
vis-a-vis
the rules of discovery as discussed in
PFE
International
and
Unitas
Hospital
, in my view, applies equally
to section 14 of the NHA. The reference to “
any
law”
in section 14(2)(b) of the
NHA includes the rules, and in particular rule 38 for present
purposes. Section 14(2)(b) of the NHA,
like section 7 of PAIA,
demonstrates a clear show of deference to the rules, and health
practitioners, whose patients refused to
consent for the disclosure
of their medical records, cannot therefore rely on section 14,
without more, when they are served with
a subpoena
duces
tecum
under rule 38. It goes without
saying that ethical rules are subject to these principles.
The
reliance on POPI
[30]
Counsel for the first respondent argues
that disclosing the medical records sought would unjustifiably
trample upon the first respondent’s
rights under POPI. Both
counsel for the applicants and the first respondent refer to section
11 of POPI in advancements of their
respective arguments. The
relevant provisions under section 11 provide:
“
(1) Personal information
may only be processed if –
…
(c) processing complies with an obligation imposed by
law on the responsible party;
…
(f) processing is necessary for
pursuing the legitimate interests of the responsible party or of a
third party to whom the information
is supplied.”
It
is common cause that the medical records constitute personal
information as per the definition in Section (1) of POPI, and also
that the processing of information includes the dissemination thereof
in any form.
[31]
Counsel for the applicants argues that
section 11(1)(c) and (f) provide for instances where information can
be disclosed, whereas
counsel for the first respondent argues
that the exception under subsection (c) does not apply as the
applicants are not
a
“
responsible
party”
required to process the
first respondent’s personal information, and subsection (f) is
also not applicable in this matter
on the basis that the medical
records are not relevant to the first respondent’s claim for
loss of earning capacity, and
they are not necessary to pursue the
applicants’ defence in the main action.
[32]
I do not agree with the contentions by the
first respondent’s counsel. A responsible party in POPI,
“
means
a public or private body or any person which, alone or in conjunction
with others, determines the purpose of and means for
processing
personal information.”
The second
and third respondents are such responsible parties, and it is in fact
on them that obligations have been
“
imposed
by law
”
by virtue of the
subpoenas served on them in terms of rule 38(1).
[33]
Furthermore, subrule (3) provides that a
data subject, which in this case would be the first respondent, may
object to the processing
of personal information
“
in
terms of subsection(1)(d) to (f), in the prescribed manner, on
reasonable ground relating to his, or her or its particular
situation,
unless legislation provides for such processing…”.
[34]
There is a good reason, in my view that
subrule (c), which provides for the processing of information where
it complies with an
obligation imposed by law on the responsible
party, was excluded in subrule (3). That is, that the legislature
never intended to
exclude the processing of information where the law
requires such processing. The rules, being delegated legislation, and
in particular
rule 38(1) for present purposes, constitute “
law”
which imposed a duty on the second and third respondents to process
the medical records of the first respondent. In terms of subrule
(c),
therefore, the processing of information is allowed irrespective of
an objection from the data subject.
[35]
As for the contention that the exception
under subrule (f) is not applicable, the general principle is that,
in terms of (f), where
the processing of information is necessary for
the pursuing of a legitimate interest of a third party (ie the
applicants in
casu
),
to whom the information is to be supplied, the exception is
applicable. However, subrule (4) provides that if a data subject
(ie
the first respondent) objected to the processing of the personal
information in terms of subrule (3), which allows for an objection
under (f), the responsible party may no longer process the personal
information.
[36]
To sum up as far as section 11 is
concerned, the section makes provision for the processing of
information in certain instances.
Two such instances are (i) where
there is a legal obligation to do so, imposed by law, on the
responsible party, and (ii) where
processing is necessary for
pursuing the legitimate interest of the responsible party or of a
third party (in this case the applicants)
to whom the information is
to be supplied. The data subject may object in respect of the second
instance, but not in respect of
the first.
[37]
first respondent’s reliance on
subsection (f) is good, but not so in respect of subsection (c) where
a duty has been imposed
on the second and third respondents, as
responsible parties, in accordance with an obligation imposed on them
by law, to process
the information. Such duties have been imposed by
way of the subpoenas
duces tecum
which were served on them in terms of rule 38.
[38]
There is another compelling reason why the
first respondent’s reliance on POPI is bad in law. Section
12(2)(d)(iii) permits
the collection of data from a source other than
the data subject
“
for the conduct
of proceedings in any court or tribunal that have commenced or are
reasonably contemplated.”
Furthermore,
section 15(3)(c)(iii) provided:
“
(3) The further processing
of personal information is not incompatible with the purpose of
collection if –
(c) further processing is
necessary –
(iii) for the conduct of
proceedings in any court or tribunal that have commenced or are
reasonably contemplated;…”
In
other words, once personal information has been collected, POPI makes
provision for the further processing thereof for purposes
of
proceedings of any court or tribunal proceedings.
[39]
Clearly the legislature never intended POPI
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 the first respondent’s reliance on provisions of POPI in
her objection to
the release of her medical records held by the
second and third respondents to the applicants must fail.
Relevance
of the medical records
[40]
The issue of concern in the present matter
is whether the injuries sustained by the first respondent and the
consequences thereof
impacted her earning capacity. In
Dippenaar
v Shield Insurance Co of SA
1979 (2) SA
904
(A), it was held (at 917B-C):
“
In
our law, under the
lex Aquilia
,
the defendant must make good the difference between the value of the
plaintiff's estate after the commission of the delict and
the value
it would have had if the delict had not been committed. The capacity
to earn money is considered to be part of a person's
estate and the
loss or impairment of that capacity constitutes a loss, if such loss
diminishes the estate.”
[41]
But it is not always so that a physical
disability impacts upon earning capacity. As held in
Rudman
v Road Accident Fund
2003 (2) SA 234
(SCA) at 241 I – 242 A;
“
A physical disability which
impacts upon capacity to earn does not necessarily reduce the estate
or patrimony of the person injured.
It may in some cases follow quite
readily that it does, but not on the facts of this case. There must
be proof that the reduction
in earning capacity indeed gives rise to
pecuniary loss.”
[42]
Counsel for the first respondent, in
arguing that unrelated injuries are irrelevant to the enquiry whether
the injuries suffered
have resulted in the loss of earning capacity,
relies on the above dictum from
Rudman
,
as well as from the dictum from
Bane and
Others v D’Ambrosi
2010 (2) SA
539
(SCA), at 547 F, as follows:
“
When a court measures the
loss of earning capacity, it invariably does so by assessing what the
plaintiff would probably have earned
had he not been injured and
deducting from that figure the probable earnings in his injured
state…”
[43]
In arguing that the medical records are not
relevant for purposes of the main action, counsel for the first
respondent contends
that the enquiry is whether the injuries suffered
have resulted in a loss of earning capacity, and there must be an
evidentiary
correlation between the injuries sustained and the loss
of earning capacity. If there is no such correlation, then the
plaintiff
would have failed to prove a loss of earning capacity.
Hence, the argument goes, as a matter of basic logic, unrelated
injuries
are irrelevant to the enquiry.
[44]
Counsel for the applicants, on the other
hand, argues that the information sought from the second and third
respondents are highly
relevant as the applicants cannot be expected
to bear the financial burden of pre-morbid medical conditions of the
first respondent
which could and likely would impact on the first
respondent’s earning capacity. I am in agreement with this.
[45]
When assessing loss of earning capacity,
the court has no crystal ball to look into to determine the future
but must take into consideration
available information when applying
contingencies. In
Allie v Road Accident
Fund
[2003] 1 All SA 144
(C), the court
had this to say para 31:
“
In assessing prospective
loss, the court is virtually called upon to ponder the
imponderables, yet it must do its
best with material available even, if in the result, each award might
be described as an informed
guess (Boberg: The Law of Delict, vol 1
at 531). It is recognized that the trial court has a wide discretion
to determine an amount
which is fair to both parties, neither denying
the plaintiff just compensation nor pouring out largesse from the
horn of plenty
at the defendant's
expense.”
[46]
To determine the extent to which a
plaintiff’s earning capacity has been compromised by an injury,
it makes sense that the
pre-morbid earning capacity has to be
estimated. It is not possible to do this with full accuracy and
contingencies are generally
applied. A pre-morbid medical condition
may be one of the factors a court will take into account when
applying a contingency to
the pre-morbid scenario, ie what a
plaintiff would have earned but-for the injury.
[47]
In
BEE v Road
Accident Fund
2018 (4) SA 366
(SCA) at
399 B - D, the court took several factors into account for justifying
an above average contingency deduction, including
the fact that the
appellant in that case was – pre-morbidly – somewhat more
at risk of injury and disability than the
average 54-year-old, given
his passionate involvement in cycling and surfing. The court held
that these are activities with which
the appellant would have
continued, but for his accident. Another factor was the fact that the
appellant was diabetic, and although
the evidence was that his
diabetes was under control, it was held that it was a condition which
could give rise to health complications.
[48]
What the counsel for the first applicant
does not address is that in calculating a loss of earning capacity,
contingencies need
to be applied to both the first respondent’s
pre-morbid earning capacity as well as her earning capacity
post-morbid. In
the pre-morbid scenario, factors including age,
general life hazards, qualifications, work history and career
prospects must be
taken into account.
[49]
The applicants appointed an expert, Dr
Johann Lourens, a psychologist and human resources consultant to
examine the first respondent
and to deliver a report on her
employability. Dr Lourens only provided a preliminary report wherein
he reported that the
“
procurement
of essential collateral information is of critical importance. This
information is currently being followed up.”
[50]
Dr Lourens had insight into various
documents pertaining to the first respondent, including the report of
the first respondent’s
expert from Burger Consulting Industrial
Psychologists (“Burger Consulting”). From this report, it
could be gleaned
that the first respondent developed anxiety when her
first marriage was dissolved, she consulted a psychiatrist who
prescribed
medication, she had a family history of anxiety and during
her second marriage she partook in recreational and illicit drug use,
smoked cigarettes and drank heavily.
[51]
Dr Lourens also took account of the first
respondent’s employment history and noted the various positions
she held since she
entered the labour market in 1992. He concluded:
“
It
would be reasonable to describe this employment history as rather
erratic/‘unstable’ in nature. Together with this,
certain
other aspect are of importance. These are:
-
The amount of time elapsed between
certain work positions;
-
The specific period of time in a certain
position.”
[52]
Dr Lourens concluded his preliminary report
as follows:
“
The
erratic/unstable employment record and related info of the claimant
makes it extremely risky to provide any specific
recommendation/opinion
pertaining to a possible work
placement/position and related remuneration.”
[53]
It is in the light of the conclusions of Dr
Lourens in his preliminary report, the attorneys for the applicants
sought access to
the medical records of the first respondent as held
by the second and third respondents. These records, in my view, are
clearly
relevant to the enquiry as to the first respondent’s
earning potential ‘but for’ the injuries that she
sustained
and especially for purposes of attaching a contingency in
relation thereto. It might be that the first respondent’s
medical
history of anxiety, drug and alcohol use may have had an
impact on her career without the injury. If this is so, a contingency
for these factors may have to be applied.
[54]
It needs be noted that Burger Consulting
also noted the first respondent’s history of anxiety, alcohol
and drug use, but they
too did not have sight of the medical records
of the first respondent as held by the second and third respondents,
but it seems
that they only reported on these on the basis of what
they have been told by the first respondent.
[55]
It may well be that the medical records
sought in this application will have no impact on the conclusions
reached by Burger Consulting,
or on any contingency to be applied to
the first respondents earning capacity
sans
her injury, but this does not detract from the fact that the records
should have regard to in order to make a determination to
these
effects or otherwise.
[56]
The Constitutional Court in
PFE
International
concluded:
“
It is difficult to imagine
how a party that is still to have access to a document can positively
tell that a document would definitely
be tendered as evidence at the
trial. It seems to me that access must precede the formulation of an
opinion regarding whether a
particular document would have any
evidential value at the trial.”
The first respondent’s rights to dignity and
privacy
[57]
It is without doubt that the medical record
of an individual consist of sensitive and personal information that
is private and confidential.
It is for these reasons that the NHA
provides a framework for the dealing with medical records and imposes
a duty of confidence
in respect of a person’s health records.
Section 14, however provides for limited circumstances where medical
information
may be disclosed. I have already dealt with the
circumstance where disclosure is required by law and concluded that a
subpoena
duces tecum
falls
in this category.
[58]
Counsel for the first respondent relies
heavily on the cases of
Tshabalala-Msimang
and Another v Makhanya and Others
[2007] ZAGPHC 161
;
2008
(6) SA 102
(WLD) and
NM and Others v
Smith (Freedom of Expression Institute as Amicus Curiae)
[2007] ZACC 6
;
2007 (5) SA 250
(CC). In both these cases the courts accentuated the
confidentiality of medical records, but both cases concerned the
unlawful
publication of such information.
[59]
The present matter is different. The
medical records are sought for purposes of litigation and not for
other purposes such as for
general publication as in the
Tsabalala-
Msimang
and
NM
v Smith
matters. The disclosure is
required in terms of the law (ie Rule 38) which I have already dealt
with.
[60]
In any event, our law encourages full
disclosure of documents for purposes of litigation, with the
understanding that such documentation
would be used for the purpose
of litigation only and not for any other purpose. In this regard, it
has been held in
Cape Town City v South
African National Roads Authority and Others
2015
(3) SA 386
(SCA) (at para 37):
“
Discovery impinges upon the
right to privacy of the party required to make discovery. According
to Lord Denning MR, ‘compulsion
is an invasion of a private
right to keep one’s documents private’. But while there
is an interest in protecting privacy
there is also the public
interest in discovering the truth. The purpose of the rule therefore
is to protect, insofar as may be
consistent with the proper conduct
of the action, the confidentiality of the disclosure. Litigants must
accordingly be encouraged
to make full discovery on the assurance
that their information will only be used for the purpose of the
litigation and not for
any other purpose. In that sense, so the
thinking goes, the interests of the proper administration of justice
require that there
should be no disincentive to full and frank
discovery.”
(internal references
removed)
[61]
In the circumstances, I am of the
view that the medical records held by the second and third
respondents should be disclosed in
terms of the subpoenas served on
them, such disclosure being permitted in terms of section 14(1)(b) of
the NHA, as rule 38 constitute
“law” which requires such
disclosure.
The
medico-legal report of Dr FJD Steyn
[62]
This matter was heard on 25 January 2021,
but two days thereafter, the applicants’ attorney made
available a medico-legal
report of Dr FJD Steyn in respect of the
first applicant. As a result, an affidavit was filed by the first
respondent’s attorney
attaching Dr Steyn’s report with a
request that the court has regard to the content of the report. I
also received supplementary
submissions from the first respondent’s
counsel for the admission of the report and the relevance thereof. I
also received,
on behalf of the applicants, an affidavit opposing the
admission of the report as well as the supplementary submission. The
affidavit
itself contain legal argument as to why the contents of Dr
Steyn’s report is not relevant for present purposes.
[63]
It seems that Dr Steyn’s report was
not made available earlier than it was because of an oversight by the
applicant’s
attorney. If it were timeously made available, it
would have been part of the record in these proceedings (it must be
noted that
the report is dated 17 December 2018), and for this reason
alone I am inclined to admit the report and have regard to it.
[64]
Counsel for the first respondent argues
that Dr Steyn’s report is of vital importance in considering
whether the first respondent
had made out a case against the relief
sought in the present application, as the report deals with both the
first respondent’s
pre- and post-morbid health, and therefore
speaks directly to whether the applicants need the first respondent’s
medical
records that are unrelated to her injuries. This argument, in
my view, misses the point that the medical records are sought for
purposes of an enquiry into the first respondent’s earning
capacity without the injuries she suffered. Dr Steyn expressed
an
opinion on the extent of the first respondent’s injuries and
how these will impact on her physical ability to work in
future. Dr
Steyn, being an orthopaedic surgeon, correctly did not consider
factors other than the injuries which may have an impact
on the first
respondent’s earning capacity, such as may be divulged through
a study of the medical record unrelated to the
injuries in question.
In fact, it is apparent from his report that the first respondent
reported no other injuries or illnesses
of note to Dr Steyn.
[65]
Dr Steyn’s report, therefore does not
take the present matter any further.
Costs
[66]
In the alternative to the prayer for costs,
counsel for the applicants generously submitted that costs could
stand over for later
determination depending on whether the medical
records are found to be relevant for purposes of the inquiry relating
to the loss
of earning capacity of the first respondent. The correct
approach, however, in my view, is whether the first applicant
correctly
or reasonably refused disclosure of her medical records. I
think not. The applicants are clearly entitled to these records in
terms
of the law, and the records are clearly relevant for purposes
of the inquiry into the first respondent’s loss of earning
capacity. For this reason, costs should follow the result in the
present matter.
Order
In
the result, I make the following order:
1.
The second and third respondents are
ordered to, within 10 days of this order, file with the registrar of
this court, all the hospital
records and documents, inclusive of
medical records, reports and x-rays, held in relation to the first
respondent, with identity
number 730[…], Liberty Medical
Scheme membership number 988[…].
2.
The first respondent shall pay the
applicants’ costs.
Signed
on 03 March 2021
--------------------------------------------------
S HOCKEY
ACTING JUDGE OF THE HIGH COURT
Legal
Representation:
Applicant: Adv.
Roelof Steyn
Respondent: Adv. PS
MacKenzi