The South African Medico Legal Society

ABANDONMENT OF PATIENT (The A-Z of Medical Law: 1)

Abandonment of a patient occurs when a doctor ceases to treat a patient before the patient has recovered or has terminated his/her contract with the doctor.
According to the common law, a doctor who abandons patients without referring them to another doctor or making arrangements for their further treatment will be liable for damages. If doctors accept a patient and undertake a particular course of treatment, they may not unilaterally abandon that patient if such abandonment might be harmful to the patient – unless the patient makes it impossible for the doctor to treat him/her. When handing over the patient the doctor must ensure that the other doctor is fully briefed regarding the patient’s condition and treatment. The abandoning of a patient may lead to a charge of unprofessional conduct, an action for the breach of contract, or an action in delict based on negligence.

ACCESS TO HEALTH CARE (The A-Z of Medical Law: 6)

Access to health care means that people should have the opportunity to receive health care services, and that such services be available, usable and effective.
The Constitution of the Republic of South Africa, 1996 provides that everyone has the right to access to health care and that children have the right to basic health care services (ss27(1)(a) and 28(1)(c). The word everyone implies that such access is not only restricted to South African citizens but also includes permanent residents, temporary visitors and maybe even illegal immigrants. Access to health care means that if people cannot afford to pay for health care services the state must make it available to them – within its available resources (s 27(2)). At present, pregnant women and children under the age of seven years have access to free health care services. The National Health Act defines health services as (a) health care services, including reproductive health care and emergency medical treatment; (b) basic nutrition and basic health care services for children; (c) medical treatment for prisoners and detainees; and (d) municipal health services (s 1).
Doctors should ensure that barriers to access to health care are minimised and that patients are informed about the availability and type of health services to which they are entitled. Doctors at clinics should not refuse to treat or refer schoolgirls seeking abortions, or HIV-positive patients requiring palliative care. In hospitals, prisoners and detainees must not be treated differently from other patients regarding their dignity and medical requirements (Constitution (s 35(20(e). However, where necessary, safeguards must be put in place to protect doctors and other health care workers from any potential dangers that prisoners and detainees may present.
The Constitutional Court has ruled that access to health care includes the right of pregnant HIV-positive mothers and their newborn babies to be provided with Nevirapine (an antiretroviral drug) to prevent HIV transmission to the babies. (Minister of Health v Treatment Action Campaign (no 2) 2002 (5) SA 271 (CC)).

ACCESS TO MEDICAL RECORDS (The A-Z of Medical Law: 8-9)
The right of access to medical records means that patients have the right to request and receive copies of their medical records and that third parties may have a similar right, subject to certain limitations.
The Constitution of the republic of South Africa, 1996 (s 32(1)) and the Promotion of Access to Information Act, 2000 (Act 2 of 2000) (s 30) govern the rights of access to medical records by patients and third parties. Access to information regarding patients is also governed by the national health Act, 2003 (Act 61 of 2003) which provides that ‘a health worker or any health care provider that has access to the health records of a user [patient] may disclose such personal information to any other person, health care provider or health establishment as is necessary for any legitimate purpose within the ordinary course and scope of his/her duties where such access or disclosure is in the interest of the user’ (s 15(1)).
Under the Regulations in terms of the Medical Schemes Act, 1998 (Act 131 of 1998), (GN R1262 of 20 October 1999), the provider of a health service must provide the member of the scheme with an account or statement reflecting the relevant diagnostic code numbers (e.g. ICD-10 code) relating to the relevant health service (regulation 5(f)). These code numbers can be used to identify the patient’s diagnosis and treatment, which may refer not only to the principal member but also his/her dependants. As such information should be kept confidential, it is the ethical duty of the person providing it to obtain informed consent from the patient before disclosing the ICD-10 codes to the medical scheme.
Doctors may release information about the patient’s medical condition with the cosent of the patient. However, requests for copies of medical records must be referred to the information officer in a public hospital or the head of the institution in a private facility (e.g.requests by employers and insurance companies).
Where doctors submit accounts directly to medical schemes, they should warn their patients that the ICD-10 codes in the statements may be used to identify their diagnosis and treatment by both the medical scheme and the principal member of the scheme.

AUTONOMY OF PATIENTS (A-Z of Medical Law: 32-33)
Patient autonomy is the ethical principle that respects the ability of mentally competent patients to make decisions for themselves. It can also be interpreted to include to protect patients with diminished autonomy.
The Constitution of the Republic of South Africa, 1996 recognises the principle of autonomy in provisions, such as the right to have dignity respected and protected (s 10). In addition everyone has the right to freedom and security of the person (s 12(1)) – which includes the right to bodily and psychological integrity, such as the right to make decisions about reproduction, the right to security in and control over their body, and the right not to be subjected to medical or scientific experiments without their informed consent (2 12(2)).
The national health Act, 2003 (Act 61 of 2003) also recognises the importance of patient autonomy by requiring informed consent (s7) from the participation of patients in the decision-making process – even if the patient is not legally competent to give consent (s 8). The Act also recognises the patient’s right to confidentiality.
Doctors should ensure that they are not drawn into situations where the patient’s autonomy is not respected or protected.

Next month attention will be given to topics beginning with a B!