This provision requires that medical records be kept in a secure storage space and, among other things, makes it an offence for a person to gain unauthorised access to medical records. Although the Sunday Times’ attorneys denied that their client was acting unlawfully, there does seem to be a problem with the Sunday Times being in possession of the Minister’s medical records, especially if you take into account this section of the Act dealing with confidentiality (by the way, the term “user” is a reference to a patient – interesting term to use in a National Health Act …):
I noticed a headline this morning that the Sunday Times has since returned its copy of the Minister’s medical records and imagine it was either a measure to stave off the urgent application the Minister’s attorneys filed yesterday or a compromise of some sort.The Minister has sued in her personal name and has contended that the acquisition of the medical records was “an unlawful and unconstitutional invasion of [her] rights to privacy and dignity”. This is where this case becomes intriguing to me. The basis for urgency is to prevent what the Minister contends is an ongoing infringement of her rights to privacy and dignity. The Minister’s concern for her dignity and reputation suggest that a claim for defamation may be in the works and this would mean a conflict between the Minister’s rights to dignity and privacy and the Sunday Times’ right to freedom of expression.One of the considerations that will probably come into play is the public interest in knowing that its Minister of Health allegedly abused her authority to bend the rules in hospital and smuggle alcohol into the hospital and even have a party until early in the morning in her room. How will the Minister’s right to privacy be weighed in this context? One of the defences against a defamation claim is that the publication is true and in the public interest. It seems to me that the public has an interest in the misconduct of its elected officials, particularly where the official’s actions are so closely linked to that official’s public duties. Although the Minister sued in her personal capacity, she allegedly abused her public office and the authority that accompanies that public office. The allegation that she was drinking alcohol before and after her procedure is also a concern in itself. It begs the question whether a person charged with safeguarding the country’s health policy should act in this manner. It also reminds me of the Zuma trial where the former deputy president spoke about his infamous shower to protect himself against a possible AIDS infection. This from a man who was charged with promoting the country’s fight against HIV/AIDS.While the Sunday Times may have acted improperly in gaining access to the Minister’s medical records, it may have been the only way for the public to find out about her alleged antics (you have probably noticed I use the word “alleged” a lot – until these facts are proved they are allegations of fact and not yet proved as such) and this is important because the public deserves to know how their elected officials conduct themselves, especially given that our electoral system doesn’t really give the public a say in which individuals participate in government, only which political party comes into power.In the context of the deputy Health Minister’s dismissal for seemingly irresponsible conduct, it now remains to be seen how the President will respond to these reports. Surely if the allegations are found to be true Manto can hardly remain on as the Minister of Health? Unfortunately it seems the determination of who acts irresponsibly and is there not fit to be in such a position of authority is somewhat selective these days. In the meantime it remains of utmost importance that the press be free to report these abuses as and when they occur, within reason of course.Technorati Tags:zuma, manto, health minister, Tshabalala-Msimang, medi-clinic, national health act, privacy, dignity, defamation, government officials, ministers, confidentiality, sunday times
What do you think?